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

2. Aubry v. Editions Vice-Versa Inc. [1998] 1 S. C. R
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 ( 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
Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [2000] 2 S.C.R 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
Little Sisters Book and Art Emporium v. Canada (Minister of Justice) Continued [2000] 2 S.C.R Supreme Court of Canada
Sections of the Customs Act 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
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
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)