When Rights Conflict
• Who decides? - Does there need to be a sense of social solidarity?
o Not everyone can agree on everything (i.e. abortion – social justice vs.
• Is there a difference between choosing/not choosing something for ourselves and
prohibiting others from making different choices?
Charter of Rights and Freedoms (1982): (DEFINITION ON TEST)
• Enacted in the ConstitutionAct of 1982
• Aprofound shift of power from the parliament to judicial body
• It guarantees “all Canadians rights to liberty, equality under the law, and freedom of
religion, expression, association and peaceful assembly”
• Regulates relationships between government and a person (people)
Only institutions of the office can infringe upon one’s Charter rights. It only applies to the
government. (Must be clearly a government institution such as police and public schools) That
(i.e. York) institution cannot infringe upon your Charter rights. It would be a case of Human
Rights being violated.
Charter and Democracy:
• Parliament - democratically elected lawmaking institution (they can overturn whatever
the courts say)
• Courts interpret the rights as they are set out in the Charter
Rights: • Rights are ‘fundamental’, but they are not ‘absolute’(they can be squashed whenever the
government wants to, (i.e. War MeasuresAct).
• Courts interpret rights
• Sec. 1: The Reasonable Limits Clause. Governments can only proscribe limits that can
be DEMONSTRABLY justified in a free and democratic society (TEST)
• Sec. 33: the Notwithstanding Clause (only applies to Sec. 2, 7-14 and 15) (TEST)
R. v. Oakes (1986) -
• David Edwin Oakes found with 8 x 1 gram vials of hash oil and $600 in cash
• Reverse Onus: Mr. Oakes had to prove that he wasn’t a drug dealer
• Defence: Sec. 8: Presumption of innocence
• Charged with being a drug dealer. They presumed he was a drug dealer, therefore,
violating sec. 8 – the presumption of innocence. He had to prove he was not a drug dealer
– reverse onus.
Prosecution: Sec. 1: Reasonable limit
1. Prescribe by law (has to be written by law) – limitation must be part of law
2. The objective of the law must be pressing and substantial (i.e. tough on drug dealers)
i. Rational connection (absent in this case because there was no rational connection
in presuming that he is guilty)
ii. Minimal impairment (many Sec. 1 arguments fail to meet this). If you can prove
there is another way of limiting something without limiting a freedom, the
government should have done that first. (I.e. something that would not impair the
rights of 14 year olds to drive, No other way – this is the minimal impairment). In
this case, this was not the case. They didn’t have to presume he was guilty and
violate sec. 8.
iii. Proportionality: balancing the negative effect of limitation with positive effects of
the law on society (Our rights are fundamental, in order to take away the rights,
something has to be really serious. Therefore, discriminating against 14 year olds,
is it benefit to the entire society? Yes. In this case, no.) 3
The Oakes Test: is used every time a Charter violation is deliberated in Courts
Proportionality – i.e. kids not being able to drive – presumed idiocy, protects society, prescribing
discriminatory laws – must be a rational connection (i.e. infants idiocy to not being able to drive)
• Sec. 293 of the Criminal Code prohibits polygamy in Canada – reflects “Christian norms
and values from 120 years ago” – “You must have a large family, men have multiple
wives.” This practice reinforces inequality, discriminates against women, and causes
• Must the law enforce the norm to the exclusion of all others?
Toronto Star Newspapers ltd. V. Canada (2010)
• Do publication bans limit the Freedom of Expression?Are they a ‘reasonable limits
prescribed by law’?
• Freedom of Expression and Publication Bans:
o Sec. 517 of the Canadian Criminal Code – if accused requests a ban on media
about his/her bail hearing, a publication ban must be granted
• Alberta: a man charged with murdering his wife + Ontario: 17 people charged with
terrorism related charges
• Do publication bans limit the Freedom of Expression?
o Courts found it was reasonable to protect s. 8
• Are they a “reasonable limit prescribed by law”?
Canada (Prime Minister) v. Omar Khadr (EXAM)
• On Jan. 29 , 2010 the Supreme Court of Canada ruled that the government is not required
to request the return of Omar Khadr to Canada
• Khadr had the right not to be deprived of liberty (Sec. 7) –