Examples of Charter-related cases
Since 1982, the Charter has played a fundamental role in Canada’s democracy and has influenced the creation and interpretation of laws and policies across Canada.
The Charter cases are meant to provide a broad overview of cases that have had an impact on Canadian society and helped to build the legal framework for analyzing Charter claims. The cases listed below demonstrate the every day impact of the Charter and have contributed to advancing the Charter’s protections for all Canadians.
As many judgments build upon previous cases, the cases are listed in chronological order.
1. Right to be secure against unreasonable search and seizure
Government investigators searched the office of the Edmonton Journal, a division of Southam Inc. The investigators wanted to search every file in the building, except for those in the newsroom. They refused to give specific information about why they were there or what sections of the Combines Investigation Act authorized the search. Southam Inc. challenged the act, arguing that it went against the right to be secure against unreasonable search or seizure.
The Supreme Court concluded that, as a general rule, police and other law enforcement searches require a warrant from a judge before a search can take place. In order to get a warrant, there must usually be “reasonable and probable grounds” to believe that an offence has been committed and that there is evidence to be found at the place of the search.
In the end, the Court decided that the act violated the Charter because it did not establish an appropriate process or standard for issuing warrants. This judgment set the stage for a robust Canadian approach to protecting people’s privacy and continues to be cited to this day.
2. Fundamental justice when claiming refugee status
Harbhajan Singh and six others tried to claim refugee status in Canada, but immigration officials denied their claims. The claimants argued that the procedures in the Immigration Act violated their fair process rights because they did not know the case against them and couldn’t challenge the government’s evidence.
The majority of the Supreme Court agreed with Singh and decided that refugee status claims required an oral hearing where claimants could state their case and know the case against them. Where decisions could result in the deprivation of rights, basic procedural fairness was determined to be more important than administrative convenience. This decision has had a lasting and important impact on Canada’s refugee process.
3. Right to religious freedom in a democratic state
Big M Drug Mart was a store in Calgary that did not close on Sundays. The police charged the store for violating the Lord’s Day Act, which stated that selling goods or conducting business on Sundays was unlawful. The act reflected the Christian tradition of reserving Sunday as a day of rest.
The Supreme Court decided that the act violated the fundamental freedoms of religion protected by the Charter. This is because the act forced everyone in Canada to observe the rules of one religion (Christianity), which limited the freedom of religion of those who did not share the same beliefs or practices. This case recognizes that laws with the purpose of obliging Canadians to conform to a specific religious tradition cannot be demonstrably justified in a free and democratic society.
4. People can only be imprisoned based on reasonable and fair laws
A provision in a provincial Motor Vehicle Act stated that anyone found guilty of driving on a highway without a license or with a suspended license would face an automatic prison sentence. This meant that drivers could be found guilty even if they did not know that their license was suspended. The province of British Columbia asked the Supreme Court to decide whether this clause was consistent with the Charter.
The majority of the Court found that the law was inconsistent with the Charter, based on the principle that no one should be put in jail if they have no intent to commit a criminal act.
This case was significant because the Court found that the Charter requires laws that can lead to imprisonment or other deprivations of life, liberty or security of the person must be procedurally and substantively fair to the accused person.
5. The right to be presumed innocent until proven guilty
David Oakes was charged with the possession of a narcotic under the Narcotics Control Act. The act assumed that those who had narcotics possessed them for the purpose of trafficking. The onus was on the accused to prove that this was not his or her intention.
Oakes argued that the act violated the right to be presumed innocent until proven guilty. The Supreme Court agreed and found that the offence violated the presumption of innocence because it required the accused to prove his innocence, rather than the Crown to prove his guilt. In the end, the Court struck down the offence because it was irrational to assume an individual was trafficking narcotics simply because they possessed small amounts of them.
This decision also set out the framework for determining whether a law that limits a Charter-protected right or freedom can be demonstrably justified in a free and democratic society.
6. Women’s rights to liberty and security
Doctors Morgentaler, Smoling and Scott ran a clinic in Toronto that performed abortions for women who did not have a certificate from an accredited or approved hospital as required by the Criminal Code. The doctors were charged with the intent to provide abortions in violation of the Criminal Code.
The majority of the Supreme Court decided to strike down the abortion provisions in the Criminal Code, because they forced women to carry a foetus to term unless they met certain criteria, like getting a certificate. The legislative scheme prevented many women from obtaining a legal abortion, even if carrying the foetus would cause them psychological or physical harm. This was considered to be a violation of the right to security of the person because it interfered deeply with a woman’s bodily integrity. Justice Bertha Wilson also held that this law interfered with women’s right to liberty, since it did not allow women to make crucial decisions about their own life or health free from state interference.
The majority of the Court also found that the provisions were not demonstrably justified in a free and democratic society, because they did not advance the state’s purpose of protecting the life and health of mothers.
Since Parliament did not pass any law in response to this decision, abortion is no longer a criminal offence in Canada.Footnote 1
7. Giving real meaning to equality rights for everyone in Canada
Mark Andrews met all the requirements to become a lawyer in British Columbia, but he did not have Canadian citizenship. Because he did not meet the citizenship requirement, he was not accepted. Andrews challenged the provincial law, which prevented him from being a lawyer, arguing that it was discriminatory since it treated non-citizens and Canadian citizens differently.
The majority of the Supreme Court decided that the provincial law infringed equality rights, because it did not let otherwise qualified people practice law solely because of their citizenship.
This case was the Court’s first decision on equality rights. It has influenced the development of equality law well beyond the specific facts of Mr. Andrew’s case, because Justice McIntyre emphasized that section 15 of the Charter protects and promotes substantive equality of opportunity for all. This deep understanding of equality has had a profound impact on Canadian law and on people’s understanding of equality all over the world.
8. Free speech and advertising to children under 13
Irwin Toy Ltd. aired television ads for toys aimed at children. Québec’s consumer protection office charged Irwin Toy with offences under the provincial Consumer Protection Act. The act did not allow commercial advertising aimed at children under 13. Irwin Toy Ltd. challenged the act, saying it unjustifiably limited their freedom of expression.
The Supreme Court decided that while the act limited the freedom of expression of the toy company, this limit was reasonably justifiable because the law pursued the important goal of protecting children under 13 who were particularly vulnerable to commercial advertising. This law did not go further than it needed to, since Irwin Toy Ltd. could still advertise children’s products to adults.
9. The right to be taught in French
Jean-Claude Mahe, Paul Dubé, and Angeline Martel were three French-speaking parents who argued that French-language education in Edmonton, Alberta was inadequate. They submitted a proposal to the Minister of Education for a new French elementary school that would be administered by a committee of parents within a separate French school board, among other features. The Minister told them that it was a policy of the province to not create any French school jurisdictions. The parents then submitted their proposal to two other school boards, but their proposals were rejected.
Mahe and the others argued that their minority language educational rights were violated. Specifically, their right to a Francophone-run education system was violated.
The Supreme Court found that minority language parents have some control over the education facilities in which their children are taught. It concluded that minority language educational rights guarantees these parents the right to manage and control a minority language school, and that adequate public funding must be provided for this purpose. The guarantee of these rights would ensure protection of a minority group’s language and cultural identity.
10. Hate speech towards targeted groups
James Keegstra was a high school teacher in Alberta who taught his students that Jewish people were evil. He also denied that the Holocaust occurred and said it was invented by Jewish people to gain sympathy. Keegstra was convicted for promoting hatred against an identifiable group based on these statements to his students.
Keegstra argued that the Criminal Code prohibitions on hate speech infringed his freedom of expression. The Supreme Court confirmed that the Charter protects all forms of speech, including hate speech, so long as it does not include violence. However, the majority of the Court concluded that the limits the Criminal Code placed on Keegstra’s freedom of expression were justifiable. This is because the limits aimed to protect groups targeted by hate speech and to promote positive relations in a country dedicated to equality and multiculturalism.
The Keegstra case serves as a reminder that freedom of expression is not absolute and can be limited in situations where there is a need to balance competing interests like respect for difference, equality and multiculturalism.
11. Evidence in trials
William Stinchcombe was a Calgary lawyer who was charged with breach of trust, theft and fraud. A witness had given evidence to the prosecution that would have helped Stinchcombe’s case. However, the prosecutor refused to give it to him, despite Stinchcombe’s repeated requests.
The Supreme Court decided that by withholding this evidence, the prosecution violated Stinchcombe’s rights under section 7 of the Charter. This is because section 7 protects the right of accused persons facing potential prison sentences to know the case against them, so that they are able to defend themselves. The ability of an accused person to make full answer and defence to the charges against them is essential to protect trial fairness and the truth-seeking function of a court.
The case was sent back to trial so that Stinchcombe could be fairly tried. This decision had a significant impact on increasing basic fairness in the criminal justice system. As a result of this case, the prosecution must now make all relevant information about a case available to a defendant.
12. Rights of accused with mental disabilities in criminal trials
Owen Swain was arrested in 1983 for attacking his wife and children and was charged with assault and aggravated assault. Fortunately, they did not sustain any serious injuries. At his trial, Swain testified that during the incident, he believed he had to protect his wife and children from devils.
Swain moved from jail to a mental health centre, where doctors prescribed him antipsychotic medications, which improved his condition. Swain was granted bail, released into the community and continued to take his medication and see a psychiatrist. Swain remained out of custody until the conclusion of his trial.
Applying the judge-made rule at the time, the court allowed the Crown to offer evidence of Swain's “insanity”. At the end of the trial, Swain was found not guilty by reason of insanity. At that time, the Criminal Code required that he automatically be held in custody until the Lieutenant Governor of the Province decided to release him.
Swain’s defence counsel challenged the constitutionality of both the judge-made rule and automatic detention under the Criminal Code. The Supreme Court found that it was contrary to fair trial rights (including the right to control one’s own defence) for the Crown to raise the defence of insanity during trial if the accused doesn’t raise issues of mental capacity. In addition, the Court struck down the automatic detention scheme since it deprived the accused of liberty based on an arbitrary standard (there was essentially no standard at all) and without adequate procedural protections.
As a result of this decision, Parliament modernized Part XX.1 of the Criminal Code to ensure accused with mental disorders are treated fairly by the criminal justice system while continuing to ensure public safety is protected.
13. Equal parental benefits
Shalom Schachter took three weeks off work without pay to stay home with his newborn. Schachter applied for “paternity benefits” under the Unemployment Insurance Act, which provided parental benefits for adoptive parents. His application was denied.
Schachter argued that he was the subject of discrimination because the act treated natural parents and adoptive parents differently. The Supreme Court agreed, concluding that the act created unequal benefits, contrary to the equality rights guaranteed by section 15 of the Charter.
The Court used this case to explain what courts could do when one part of a law unjustifiably limits Charter-protected rights and freedoms. When this happens, courts can strike down the part of the law that is inconsistent with the Charter, among other remedies. In some circumstances, courts can also read words into the law to make it consistent with the Charter.
14. Publication bans during trial
Four men who were members of a Catholic religious order were charged with sexual assault. Following their arrest, the Canadian Broadcasting Corporation and the National Film Board tried to air “The Boys of St. Vincent.” The film was a docudrama that was inspired by events similar to those allegedly committed by the four accused.
A lower court judge banned the docudrama from airing until after the trials, stating that it could violate the men’s right to a fair trial. The Canadian Broadcasting Corporation and the National Film Board argued that this ban violated their freedom of expression.
The Supreme Court stated that parties seeking a publication ban must demonstrate that there is a “real and substantial risk” of interference with the right to a fair trial. Though the ban was meant to prevent this risk, it was too broad in its application. The Court held that the ban was unconstitutional and infringed freedom of expression because it was unjustifiable.
Freedom of expression and the press are necessary features to a free and democratic society. Any measures that ban media from publishing information of interest restricts these freedoms and must be justified as reasonable and proportionate to the reason for the ban.
15. Equality for people with disabilities
Susan Eldridge, John Warren, and Linda Warren were born deaf. They preferred to communicate through sign language. While provincial law provided funding for medically required services, no funding was available for sign language interpreters. They argued that this infringed their equality rights.
The Supreme Court agreed, concluding that their equality rights were infringed because they were denied the equal benefit of access to medical care based on their disability. Without sign language interpreters, people who are deaf would not be able to effectively communicate with their doctors, which increases the risk of misdiagnosis and ineffective treatment.
The case shows that equality does not necessarily mean identical treatment for everybody. In certain cases, disadvantaged groups may need more services or programs. Governments, employers and service providers need to consider the need to eliminate barriers to allow for the full participation of persons with disabilities in Canadian society.
16. Discrimination based on sexual orientation
Delwin Vriend worked as a laboratory coordinator at a college in Edmonton, Alberta. After he disclosed that he was homosexual, Vriend was fired from his position. His sexual orientation did not comply with the college’s policy on homosexuality. Vriend wanted to make a complaint with the Alberta Human Rights Commission that his employer had discriminated against him. However, Alberta’s human rights legislation did not include sexual orientation as a prohibited ground of discrimination.
Vriend argued that failing to include sexual orientation as a prohibited ground of discrimination infringed his equality rights. The Supreme Court agreed and confirmed that sexual orientation is a prohibited ground of discrimination under the Charter, even though it is not specifically listed. The Court read in the words “sexual orientation” into the list of prohibited grounds in the Alberta law.
This case is important for many different reasons, including its discussion of how even human rights laws may violate equality rights when they fail to protect specific groups of individuals who have historically been discriminated against.
17. Equality rights for same-sex partners
M. sought spousal support under the Family Law Act after her same-sex relationship ended. The act defined a spouse as a person who is legally married or an unmarried man or woman who has lived with a member of the opposite sex for at least three years.
M. claimed that the act violated her equality rights since it treated opposite-sex unmarried couples differently than same-sex unmarried couples. The Supreme Court found that the act discriminated against people in same-sex relationships. The act implied that their relationships were less valuable, less worthy of recognition and less worthy of legal protection than the relationships of opposite-sex couples. This denial of people’s equality and dignity in the eyes of the law is exactly what the Charter was meant to protect against.
Because of this landmark case, legislation that discriminated against same-sex couples was changed across Canada.
This case helped pave the way for full marriage equality to be achieved across Canada in 2005.
18. A right to a state-funded lawyer when the government seeks to remove a child from his or her parent’s custody
The New Brunswick Minister of Heath and Community Services was granted custody of Ms. G’s three children for a six-month period. The Minister wanted to extend the custody order for another six months. The children’s mother wanted to go to court to argue against the custody order extension, but could not afford to hire a lawyer. She applied for legal aid under New Brunswick’s Domestic Legal Aid Program, but was denied because at the time the program did not cover the cost of lawyers in custody cases.
Ms. G challenged the provincial legal aid program, arguing that it violated her right to security of the person because the hearing would not be fair if she did not have legal representation. The Supreme Court agreed, finding that when the government removes a child from a parent, this causes so much distress, stigma and rupture of the parent-child bond that it interferes with the parent’s security of the person. This means that the Charter guarantees the parent a right to a fair hearing in such cases, which may require legal representation for the parent. Where the case involves complicated facts or legal argument and where the parent cannot afford a lawyer, the government must pay for the parent’s legal representation.
This case ensured that parents seeking to challenge a government agency’s removal of a child from their care would be able to meaningfully participate in the custody hearing. It also confirmed that the Charter’s protection of the right to life, liberty and security of the person is not limited to purely criminal law cases.
19. Freedom speech and equality of the LGBTQ2 community
Little Sisters was a specialized bookstore that sold books primarily to the gay and lesbian community. The bookstore imported most of its material from the United States. Customs officials classified the books and other materials as “obscene” which prevented the shipments from entering Canada. Under the customs regime, businesses and individuals in Canada were prohibited from importing “obscene” materials into Canada.
Little Sisters challenged the customs rules, arguing that the regime violated freedom of expression and the equality rights of the LGBTQ2 community. The Supreme Court concluded that the customs regime did limit freedom of expression, but that most of the law could be justified as a reasonable limit on this right. However, the Court found that the way that the customs officials were applying the law violated the equality rights of the customers of Little Sisters bookstore because the officials were applying a discriminatory standard to their materials compared to those aimed at a heterosexual audience.
This case helped pave the way for further recognition of the rights of sexual minorities in Canada and also confirmed that freedom of expression protects the right to receive materials like books. The case also highlighted that both laws and the actions of all government officials must respect the Charter.
20. Seeking assurances before extradition
Canadian citizens Glen Burns and Atif Rafay were accused of committing murder in the United States. Under the applicable American law, this offence was punishable by the death penalty or life in prison without the possibility of parole. American authorities were seeking to have Burns and Rafay extradited to Washington for trial. Canada granted the extradition and both were sent to the United States. However, prior to extraditing them, Canada did not seek confirmation from the United States that the two men would not face the death penalty before sending them back.
Burns and Rafay argued that their extradition would lead to a deprivation of their rights to life, liberty and security in breach of the principles of fundamental justice. The Supreme Court agreed. The Court decided that, before Canada extraditing individuals to places where they could face the death penalty, they must get confirmation that the death penalty will not be imposed if they are sent back.
This case represented a significant evolution in the law under section 7 of the Charter.
21. Inmates’ right to vote
A provision in the Canada Elections Act prohibited all inmates from voting in federal elections. The Supreme Court found that this provision unjustifiably infringed the inmates’ right to vote. It was replaced by a new provision that denied prisoners serving a sentence of two years or more the right to vote.
Richard Sauvé challenged this new law. The Court decided that the government still had not justified infringing the inmates’ right to vote. In other words, the government had not proven that there was a real and pressing need to deny inmates the right to vote.
As a result of this case, Canadian prisoners over 18 have the right to vote in Canada, regardless of the length of their sentence. Allowing inmates to exercise their right to vote is an important way to teach them about the democratic values of the Canadian state. The Court also confirmed that the right of all Canadian citizens to vote is a reflection of Canada’s constitutional commitment to the inherent worth and dignity of all Canadians.
22. The right to play a meaningful role in the electoral process
According to the Canada Elections Act, political groups registering as official parties needed to meet certain criteria, including that a party needed to nominate candidates in at least 50 electoral districts. Registered parties were entitled to specific financial benefits under the act, including the ability to issue tax receipts for donations. Michel Figueroa, the leader of the Communist Party of Canada, argued that this 50-candidate rule was unfair for smaller political parties.
The Supreme Court found that the democratic rights protected in the Charter include the right of each citizen to play a meaningful role in the electoral process. Even small political parties have a role to play in engaging individual citizens in debates that help shape Canadian policy on many social issues. The Court decided that the 50-candidate rule interfered with democratic rights because it disadvantaged small political parties and had a negative impact on the degree to which some citizens could influence policy and vote for their preferred candidate. The rule could not be justified so it was struck down. The Figueroa case was a significant victory for participatory democracy in Canada.
23. Legal recognition of same-sex marriage
The federal government drafted a law recognizing the right of same-sex couples to civil marriage across Canada. In 2003, the government submitted questions to the Supreme Court to determine whether the law was constitutional, violated the Charter and impacted religious freedom.
The Supreme Court found that Parliament had the authority to pass a law to allow same-sex couples to get married. The Court also concluded that the new definition of marriage in the proposed federal law did not violate the Charter. In fact, the very purpose of extending the capacity to marry to same-sex couples was to promote Charter rights and values like the right to equality of members of the LGBTQ2 community. Finally, the Court found that if a religious official was opposed to same-sex marriage because of a sincerely held religious belief, this official would continue to benefit from the Charter protection of freedom of religion. Nothing in the law required religious officials to perform same-sex marriage ceremonies.
This case reaffirmed that all rights in the Charter have equal value, and that simply recognizing one group’s rights (e.g. equality rights of the LGBTQ2 community) does not conflict with others’ rights. Where different rights or freedoms actually conflict, the Charter allows for reconciling these conflicting rights wherever possible. The government has to justify any actual restriction on Charter rights or freedoms when different rights and freedoms actually conflict.
24. Religious freedom in school
Gurbaj Singh Multani was an orthodox Sikh student who believed that his religion required him to wear a kirpan at all times, including at school. A kirpan is a religious object worn by people of Sikh faith that looks like a dagger. Multani and his parents agreed with the school board’s request that he seal the kirpan in his clothing at all times while wearing it at school. However, the school board’s council of commissioners told Multani that he could not wear the kirpan to school even if it was sealed in his clothing because bringing dangerous objects to school violated the school’s code of conduct.
The Supreme Court found that the council’s decision infringed Multani’s freedom of religion. Multani sincerely believed that his Sikh faith required him to wear the kirpan and the prohibition on wearing it would have prevented him from attending public school altogether. The school board had not justified that a full ban on wearing kirpans in school was a reasonable limit on freedom of religion. There had never been a violent incident involving a kirpan at school and there was no evidence that the kirpan itself was a symbol of violence. The Court’s decision provides important guidance on the relationship between religious freedom, multiculturalism and public education in Canada. A total ban on wearing kirpans in schools ignores the importance of respect for minorities and religious tolerance in Canada’s multicultural society.
25. Collective bargaining process
The government of British Columbia passed legislation to respond to challenges facing the province’s health care system. Part of the new laws removed certain key collective agreement protections for employees in the health-care sector. This meant that these employees were prevented from meaningful bargaining with their employer. There were no meaningful consultations with the affected unions before this law was passed.
The Supreme Court found for the first time that the freedom of association protects the collective bargaining process. Workers have the freedom to unite, present demands to government employers collectively and engage in discussions to achieve workplace-related goals. Governments must not substantially interfere with these activities. As a result, the law was found to violate the freedom of association and was struck down in part.
26. Programs aimed at helping disadvantaged groups can be consistent with Charter’s equality rights protections
As part of a government program to improve the economic situation of Indigenous communities near the mouth of the Fraser River, communal fishing licences allowed members of three Indigenous bands to catch salmon at a designated time. John Kapp and a group of commercial fishers said that they were being discriminated against because they weren’t allowed to fish for salmon at the mouth of the Fraser River during these times.
The Supreme Court found no discrimination because the special fishing privileges for Indigenous groups were granted for the legitimate purpose of assisting those disadvantaged communities. This case made it clear that governments can seek to improve the lives of historically disadvantaged groups by passing laws and creating programs intended to help them. It also recognized that when properly designed, these laws and programs can be entirely compatible with equality rights protection under the Charter
27. Official languages rights
In 1985, Industry Canada created an economic development program for Ontario’s rural areas. The program’s services were offered by the North Simcoe Community Futures Development Corporation on behalf of Industry Canada. Raymond DesRochers argued that the rights of the French-speaking population of Huronia were violated because the North Simcoe Corporation did not provide services of equal quality in both official languages.
Since the North Simcoe Corporation made efforts to reach the linguistic majority community and involve that community in program development and implementation, it had the duty to do the same for the linguistic minority community
For the first time, the Supreme Court examined how linguistic equality should factor into the provision of government services. The Court concluded that depending on the nature of the service in question and its purpose, the development and implementation of identical services in French and in English does not always allow for the provision of services to both linguistic communities in a manner that respects the substantive equality between the two languages. It is sometimes necessary to adapt existing services to accommodate the needs of the minority. Following this decision, all government departments were asked to review their services and programs in light of the decision.
28. Awards for Charter damages
The Vancouver police received information that someone planned to throw a pie at the Prime Minister during a ceremony. The officers mistakenly identified that person as Alan Ward and handcuffed him. Ward protested his detention and was arrested for breach of the peace. He was taken to the police station, where he was detained for over 4 hours and subjected to a strip search. Later, the police determined that they lacked the grounds to charge Ward for attempted assault and let him go.
Ward argued that his right to be free from unreasonable search or seizure was breached. The Supreme Court agreed and upheld an award of $5,000 for the strip search.
In doing so, the Court established the framework for awarding Charter damages. Its decision was built on a previous judgment, where the Supreme Court explained that courts have the very broad power to give “just and appropriate” remedies when a government action violates the Charter. The Court held/found that damages can be awarded if the victim of the Charter violation shows why damages are fair and appropriate. Courts will consider whether damages would compensate the victim for the harm done, justify the importance of the right, or deter future breaches.
29. Supervised injection sites
In 2003, health authorities in British Columbia opened a supervised drug injection site to combat the epidemic of HIV/AIDS and hepatitis C in the Downtown Eastside of Vancouver. In order for the operation of these sites to be considered legal, the federal Minister of Health must grant an exemption from the prohibitions of possession and trafficking of controlled substances. In 2008, the BC health authorities made an application for a new exemption before the previous one expired. The Minister denied the application. The organization that ran the site and a number of its clients argued that the Minister’s decision violated the right to life, liberty and security of the person.
The Supreme Court found that the Minister’s decision would prevent injection drug users from accessing life-saving health services. As a result, the health of the clients would be threatened and their lives would be endangered. Evidence showed that in over the 8 years of its operation, the safe injection site had proven to save lives with no known negative impact on public safety or health. The Minister’s decision went against the public safety objectives it was supposed to be pursuing. It was also arbitrary, meaning it had no rational connection to the government’s stated purpose of protecting lives and health. The Court ordered the Minister to grant the exemption.
30. Increasing access to justice for public interest cases
The Downtown Eastside Sex Workers United Against Violence Society is an organization run by current and former sex workers. The organization, along with a former sex worker, Sheryl Kiselbach, brought forward a constitutional claim. The claim was a Charter challenge to certain sections of the Criminal Code that criminalized various activities relating to prostitution.
Before the workers could make their case, the Crown argued that Ms. Kiselbach and the organization were not the right parties to bring the case to court, based on previous decisions setting out a fairly strict test for public interest standing.
In this case, the Supreme Court recognized the need to improve access to justice for people who are disadvantaged in society and who face barriers in bringing important Charter issues before the courts. They decided that the parties qualified as having public interest standing because their case was a reasonable and effective way for the issues to be brought before the courts, even though they were not directly affected by the laws being challenged and other people could potentially bring similar challenges. This decision relaxed the approach for determining public interest standing and marked an important moment for greater access to justice in Canada.
31. Balancing competing rights and freedoms: religious freedom and trial fairness
After N.S. was sexually assaulted, the Crown called her as a witness in the preliminary inquiry of her accused attackers. For religious reasons, N.S. asked to testify wearing a niqab, a head scarf that covers the face except the eyes. The judge ordered her to remove her niqab, but N.S. argued that making her do so would infringe her right to religious freedom.
The majority of the Supreme Court held that if wearing the niqab poses no serious risk to trial fairness, a witness who wishes to wear it for sincere religious reasons may do so. This case requires judges try to find a way to balance freedom of religion and trial fairness if the two rights conflict with each other. More generally, this case highlights the need for public institutions to accommodate religious difference as much as possible so everyone feels respected, while still upholding other Charter-protected rights and freedoms.
32. Sex work and the right to security of the person
Terri Jean Bedford, Amy Lebovitch and Valerie Scott were current or former sex workers who challenged three provisions of the Criminal Code which criminalized various activities relating to prostitution, including:
- public communication for the purposes of prostitution
- operating a bawdy house
- living off of the avails of prostitution
They argued that these restrictions deprived sex workers of their right to security by forcing them to work in secret, which prevented them from adopting important and life-saving safety measures, even though prostitution itself was legal.
The Supreme Court decided these provisions violated the right to security because they increased the serious risks sex workers faced on a daily basis. The government had not proven that the provisions were a proportionate response to the harms of social nuisance and the exploitation of sex workers. The provisions were unconstitutional because they went too far in terms of the conduct they prohibited as compared to the social harms they were supposed to address. In addition, the very serious impact of some of the prohibitions on sex workers’ safety was “totally out of sync” with the objective of the law.
33. The right to strike
In 2008, Saskatchewan passed legislation to prevent certain public service workers from going on strike. A meaningful collective bargaining process requires employees to be able to strike when good-faith negotiations break down. The legislation did not offer any other way for resolving bargaining disputes, such as arbitration. The Saskatchewan Federation of Labour and a group of other unions claimed that the new laws violated their right to freedom of association.
The Supreme Court found that the laws were unconstitutional on the basis that they interfered with a meaningful process of collective bargaining. They went beyond what was reasonably required to ensure the uninterrupted delivery of essential public services during a strike. For the first time, the Court agreed that freedom of association includes the right to strike.
34. Medical assistance in dying
After Kay Carter was diagnosed with a condition that compressed her spinal cord, her health began to deteriorate. She required assistance with almost all of her daily activities and suffered from chronic pain. As her illness progressed, Carter arranged for her assisted death in Switzerland, since it was prohibited in Canada at that time. After her death, Carter’s family, a number of terminally ill individuals and the British Columbia Civil Liberties Association challenged the Criminal Code provision which prohibited assisted dying.
The Supreme Court found that the prohibition on assisted death infringed the right to life, liberty and security of the person of individuals seeking medical assistance to end their intolerable suffering. This infringement was contrary to the principles of fundamental justice because it went beyond what the law was intending to achieve, namely to protect vulnerable people from being induced to commit suicide at a time of weakness, by denying everyone the opportunity to make an important choices regarding their dignity and personal integrity, regardless of whether they were actually vulnerable or not. The Court determined that the government had not demonstrated that the Criminal Code’s total prohibition on assisted dying could be justified as reasonable and proportionate to the law’s objective.
35. The right to be tried in a reasonable time
In December 2008, Barrett Jordan was arrested and charged with offences relating to possession and trafficking. It was not until February 2013 that he was finally convicted of five drug-related offences. The total delay between the charges and the end of trial was over 49 months. During his trial, Jordan asked to stay the proceedings, which is a request to stop the case from moving forward. He believed that the delay violated his right to be tried within a reasonable time.
The Supreme Court agreed that the delay was too long for a simple drug trial. As a result, the Court created new guidelines to decide whether a delay is reasonable or unreasonable. According to the default guidelines, a case should be tried within 18 months in provincial court and 30 months in superior court. These delays can only be exceeded in exceptional circumstances. While building on previous decisions that had already had a significant impact on the justice system, the majority made it clear they did not think enough had yet been done to eliminate complacency toward delay, recognizing that delay has a negative impact on the accused, victims of crime and society’s interest in seeing justice is done.
36. Reasonable expectation of privacy in text messages
Nour Marakah sent text messages regarding illegal transactions in firearms to his accomplice, Andrew Winchester. In the course of their investigation, the police executed several search warrants, subsequently arresting both Mr. Marakah and Mr. Winchester and seizing both of their cell phones. Both phones were put through a forensic search, which revealed text messages implicating both men in gun trafficking.
At his trial, Mr. Marakah argued that the incriminating messages should not be admitted into evidence because they were obtained in violation of his s. 8 right against unreasonable search and seizure. The issue before the Supreme Court was whether Mr. Marakah had a reasonable expectation of privacy in the messages on Mr. Winchester's phone.
The majority of the Supreme Court affirmed the highly private nature of electronic conversations, explaining that text conversations allow people to share details of their "activities, relationships, and even their identities that they would never reveal to the world at large". The fact that text messaging inherently involves some loss of control over the electronic conversation - because it involves creating a permanent record of the conversation that is in the possession of another person - does not mean that the sender of a text message necessarily loses their reasonable expectation that the government will not access the conversation. Under the circumstances, Mr. Marakah retained a reasonable expectation of privacy in the copies of the text messages found on Mr. Winchester's phone.
Because the search of Mr. Winchester's phone was not a valid search incident to arrest, it was not authorized by law and violated Mr. Marakah's s. 8 rights. The Court concluded that the evidence should be excluded under s. 24(2) of the Charter.
37. Right to vote for all non-resident Canadian citizens
Gillian Frank and Jamie Duong were Canadian citizens who lived abroad. They nevertheless maintained strong ties to Canada and wanted to vote in federal elections. They could not do so because the Canada Elections Act prohibited voting by Canadian citizens living outside of Canada for more than five years. They challenged the provisions as an unjustifiable violation of section 3 of the Charter, which protects the right of citizens to vote.
The majority of the Supreme Court held that the challenged provisions infringed voting rights and were not justified by section 1 of the Charter. Limiting the right to vote of non-resident citizens was not minimally impairing, and there was little to justify the choice of five years as the threshold, or to show how it was tailored to respond to a specific problem. The majority reasoned that the residence requirement emerged at a time when citizens were generally unable to travel as easily and extensively as they do today and tended to spend their lives in one community. In contrast, citizens today have an unprecedented ability to move throughout the world and maintain communications. The Court emphasized that citizenship, not residence, defines Canada's political community and underlies the right to vote.
The Court reiterated that the right to vote is a basic and important democratic right, and any limitation of the right will be subject to a stringent justification standard. The parts of the Canada Elections Act that limit the voting rights of non-resident citizens were repealed and are no longer in force.
Report a problem on this page
- Date modified: