Significant cases: under the Charter of Rights and Freedoms--first 25 years.

• Author: McKay-Panos, Linda
• Position: Case overview

[ILLUSTRATION OMITTED]

The Canadian Charter of Rights and Freedoms (Charter) is now 25 years old. There have been a number of legal decisions dealing with both procedural and substantive issues under the Charter. Charter cases are very important for Canada as they not only affect individual applicants but often have a significant impact on Canadian society as a whole. With the passage of time, the facts of the cases often fade into the background, and what become memorable are the legal principles that are set down by the court in dealing with often controversial issues. While there are literally dozens of significant Charter cases, I have endeavoured to discuss a Supreme Court of Canada case or two under several sections of the Charter.

Preliminary Requirements: Standing to bring a Charter case to the court

Hy and Zel's Inc. v. Ontario (Attorney General) (1993)

In order for the court to grant standing in a civil case where the party does not claim a breach of its own Charter rights but those of others

* a serious issue must be raised as to the constitutional validity of the act;

* the appellant must be directly affected by the act or have a genuine interest in its validity; and

* there must be no other reasonable and effective way to bring the issue before the court.

What kinds of issues can the court decide?

The issue presented to the court must be justiciable; i.e., the court must be requested to rule on a legal question and not a political one. In Operation Dismantle v. The Queen (1985), Justice Wilson held that the government's decision to allow the testing of the US cruise missile in Canada, although an exercise of the royal prerogative, was not insulated from review. It was determined to be a political question since the Court had a constitutional obligation under s. 24 of the Charter to decide whether any particular act of the executive violated or threatened to violate any right of the citizen.

The action or legislation being challenged must be that of the government

The Charter applies to governmental action and to the common law except where matters are solely between private parties. Nevertheless, judges should interpret the common law in the light of the Charter (RWDSU v. Dolphin Delivery Ltd. 1986)). The Charter applies to all entities that are essentially governmental in nature including municipalities (Godbout v. Longueil (City) (1997)). The Charter does not only apply to positive actions of the government. If provincial legislation is under-inclusive by omission, the Charter can apply: Vriend v. Alberta (1998) (sexual orientation read into Alberta's human rights legislation).

Charter s. 1

R. v. Oakes (1986)

The onus of proving that a limitation on any Charter right is justified in a free and democratic society is on the party seeking to uphold the limitation. First, the objective to be served by the measures limiting a Charter right must be sufficiently important to justify overriding a constitutionally protected right or freedom. Second, the means must be reasonable and demonstrably justified in a free and democratic society in proportion to the...