Unit 2, Chapter 2

1. Unit 2, Chapter 2 Charter Cases – Take up Textbook pages 51-58

2. Aubry v. Editions Vice-Versa Inc.[1998] 1 S.C.R. 591 Supreme Court of Canada • Pascal Claude Aubry takes civil action again photographer and magazine • Aubry (age 17) was sitting on steps of public building when photo was taken • Claims it was a violation of her right to privacy • Image has been used illegally to help sell the magazine • Defendant argues that: • The plaintiff was in a public space and can’t expect privacy • Uses his charter right to ‘guaranteed freedom of expression’ • Judge rules in favour of Aubry and orders the defendant to pay $2000 in damages • Supreme Court of Canada upheld that decision

3. R. v. Keegstra(1990) 117 N.R.1 Supreme Court of Canada • James Keegstra taught high school in Alberta (1970-1982 when dismissed) • Taught that the holocaust didn’t happen – fabricated by Jews as part of their conspiracy to rule the world • Described Jews as “treacherous”, “sadistic”, and “power hungry”, and responsible for economic depression, war and revolutions. • 1984, Keegstra charged under the criminal code with promoting hatred • Indictable offence (severe criminal) – imprisonment >2 years. Or • Summary conviction (tried without jury) • Convicted by judge and jury – fined $5000

4. R. v. Keegstra Continued(1990) 117 N.R.1 Supreme Court of Canada • June 1988 – Appealed, Alberta Court of Appeals • Criminal Code provisions violated his Charter right to freedom of expression, • Alberta Court of Appeals unanimously accepted his appeal – criminal code provision was too broad and not a “reasonable limit” prescribed by law under Section 1 Charter • Crown appealed to the Supreme Court of Canada 1989 • 4 to 3 Judgment upheld the Crown’s appeal • All 7 judges agreed that ‘hate law’ violated section 2 charter • 4 of the 7 believed the violation could be justified under section 1 – it would help protect victims from hate propaganda

5. Little Sisters Book and Art Emporium v. Canada (Minister of Justice)[2000] 2 S.C.R. 1120 Supreme Court of Canada • Vancouver bookstore- sells gay, lesbian, erotica. 80% imported from States and must go through customs • Store owner took legal action against gov’t • Many imported materials were being unfairly seized by customs officials, who judged them obscene • Criminal Code: “obscene” if they show sex with violence • The importer must prove that material is not obscene / offensive • Trial judge ruled in favour of bookstore • Untrained customs officials target this bookstore because it sold lesbian and gay erotica • They were judging the sexual orientation itself to be obscene • Therefore this store was being discriminated against

6. Little Sisters Book and Art Emporium v. Canada (Minister of Justice) Continued [2000] 2 S.C.R. 1120 Supreme Court of Canada • Sections of the CustomsAct permitting customs officials to confiscate “obscene” material was illegal since is trespassed upon section 2(b) and 15(1) of the Charter • Federal government appealed to the Supreme Court, whose decision was mixed • Canada Customs has harassed Little Sisters – “excessive and unnecessary prejudice” towards the gay / lesbian community • Government does have the right to seize obscene material but must prove they were obscene and offensive to the community within 30 days • Burdon of proof now falls on Canada Customs, not the importer

7. Arsenault-Cameron v. Prince Edward Island[2000] 1 S.C.R 3 Supreme Court of Canada • Group of parents in P.E.I. wanted their children to be educated in French • Applied to the French Lang. School Board to establish a French school for grade 1-6 in their community • Minister of Ed. agreed the children were entitled to be educated in French • but not enough $ to start a new French school • Offered to bus them to the existing French school (57 min each way) • Parents took legal action against the provincial govt. • Charter Section 23 – children had a right to be educated in French • P.E.I Supreme Court agreed and ordered the government to provide such a French school • Supreme Court (Appeal Division) overruled this decision • Supreme Court of Canada then ruled that the original decision was the right one and ordered the government to provide a French school

8. Resolving Infringements of the Charter • Court decides a case comes under the Charter – that a guaranteed right has been infringed (trespassed upon) • Must then decide if the restriction is “reasonable” • Section 1: R & F can be restricted for the good of the group • Demonstrably justifiable in a free and democratic society – Then it will remain in place Reasonable • It enforces an important government objective; • The restriction on individual R&F is minimal • The law is clear and sets exact standards (eg. precise guidelines – what is “obscene”) Justified • Both the objective and the means must be defensible in terms of the values of a free and democratic society

9. Irwin Toy Limited v. Quebec (Attorney General)(1989) 58 D.L.R (4th) 577 Supreme Court of Canada • Irwin Toys sought a declaration that the Consumers Protection Act of Quebec ( that limits commercial advertising) was Ultra vires (outside) the Quebec legislature, and infringed the Quebec Charter of Human Rights and Freedoms and the Canadian Charter Protection Act (determine if ad was aimed at 13 and under) considered: • Presentation and context • Nature and purpose of the goods advertised • Way ad was presented and time and place • Also listed occasions when ads could be aimed at kids

10. Irwin Toy Limited v. Quebec (Attorney General) Continued (1989) 58 D.L.R (4th) 577 Supreme Court of Canada • Case heard in the Superior Court of the District of Montreal • Then heard in the Quebec Court of Appeal • Evidence presented that kids under age 13 were susceptible to media manipulation • Kids under 13 cannot differentiate clearly between reality and fiction • Kids under 13 cannot grasp the persuasive intention behind media messaging • Supreme Court of Canada ruled that the law did not infringe unreasonably on Irwin’s right to freedom of expression

11. Solutions / Remedies, under the Charter Two ways of enforcing R&F under the Charter • Section 52 – allows courts to strike down a law if it breaches the Charter • Courts can also read down the law –Law remain generally accepted but not in this particular case

12. Solutions / Remedies, under the Charter • Apply to the courts directly – stating that one or more of their R&F guaranteed in the Charter has been violated (section 24)