NCA Constitutional Law 2

Note that the challenger has the burden of proving that a law is a breach of the Charter on a balance of probabilities
Note that there is a presumption of constitutionality
If there is a breach, then the burden shifts to the party seeking to uphold the limitation to prove it is either reasonable per s.1 or that the evidence should be excluded per s. 24(2)
If it cannot be saved under s. 1, then the law is rendered of no force and effect

Notwithstanding Clause – s. 33:
This provision allows the legislature to expressly state that a law is valid notwithstanding a violation of s. 2 or ss. 7-15 of the Charter
Can be renewed every five years with another express statement
Invoking this clause is easier than amending the Charter
It can be seen as an affirmation that Parliament has ultimate control, instead of the Courts

Constitutional Exemption:
It is a principle whereby a law remains valid, but the Court exempts a particular individual from its application
The jurisprudence  the weight of authority is “far” against recognizing constitutional exemptions
This is because allowing a constitutional exemption would improperly intrude on Parliament’s intent
Instead, the appropriate remedy is via s. 52(1) – strike the law down
R v Ferguson  a constitutional exemption undermines the rule of law

Section 8:
“Everyone has the right to be secure against unreasonable search or seizure”
Here, “everyone” includes corporations

STEP 1: Is there a breach? Per Regina v Tessling, the following:
1. Have to look at whether the accused has a reasonable expectation of privacy
2. If so, was the search conducted reasonably?

Sub Step 1: Is the search or seizure in the premises directly owned by the defendant (if not, skip to sub step 3 then go back to 2 if can be determined there is control)

Sub Step 2: What is the reasonable expectation of privacy?
Only when state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a “search” per s. 8 (Regina v Tessling)
Cases have established that s. 8 includes personal privacy, territorial privacy and informational privacy (Regina v Tessling)
Personal privacy protects bodily integrity, and in particular the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal (Para 21)
Territorial privacy includes privacy in the home and, to a smaller degree, in the perimeter around the home (Para 22)
Informational privacy is “the claim or individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (Para 23)
The “totality of circumstances” test – From Regina v Tessling
1. What was the subject matter of the FLIR image?
2. Did the respondent have a direct interest in the subject matter of the FLIR image?
3. Did the respondent have a subjective expectation of privacy in the subject matter of the FLIR image?
Is it a voluntary exposure of information? If so, per Regina v Tessling, no subjective expectation of privacy
4. If so, was the expectation objectively reasonable? In this respect, have to consider:

A. The place where the alleged “search” occurred
In RvT, it was held that the home is traditionally accorded the highest degree of privacy
B. Whether the subject matter was in public view
C. Whether the subject matter had been abandoned
D. Whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
E. Whether the police technique was intrusive in relation to the privacy interest
F. Whether the use of surveillance technology was itself objectively unreasonable
G. Whether the FLIR heat profile exposed an intimate details of the respondent’s lifestyle, or information of a biographical nature
In Plant, Sopinka J stated that s. 8 “should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state (Para 25)

In Regina v Tessling, the defendant did not have an objective reasonable expectation of privacy with regards to his house’s heat profile
Because on its own, information about heat profiles is meaningless
No warrant could ever be granted solely on those grounds
In R v Kang-Brown, SCC held that in absence of reasonable and probable grounds, sniffer dogs in bus stations are a violation of a reasonable expectation of privacy
In R v Plant, the SCC held that there is no reasonable expectation of privacy re: electrical bills

Sub Step 3: Does the defendant have a reasonable expectation of privacy in premises they don’t own?
Does the defendant contribute to the rent or household expenses (Edwards v The Queen)
Does the defendant have the authority to regulate access to the premises (more important – E v TQ)
Therefore ask if the defendant has the control to admit or exclude people from the premises
Therefore, the right to be free from intrusion or interference is a key element of privacy (Edwards) – since the appellant could not be free from intrusion or interference in Mrs. Evers’ apartment he could not have had a reasonable expectation of privacy

Sub Step 4: Is the search reasonable?
A warrantless search will be prima facie unreasonable (HvS)
a valid warrant is a constant prerequisite for valid search and seizure both at common law and under statute (HvS)
A search will be reasonable if:
It is authorized by law,
In the case of the common law power to arrest, have to look at the following;
Arrest must be lawful (R v Stillman)
The search must have been conducted as an “incident” to the lawful arrest
Per Stillman, following a valid arrest a police officer may search and seize evidence
Also, may seize anything that would make the arrested armed and dangerous and to preserve evidence that may go out of existence or be lost if not immediately seized
The manner in which the search was carried out must be reasonable
In Stillman, officers knew the YOA required a parent or lawyer present for all interviews
The law itself is reasonable,
And the manner in which it was carried out is reasonable (R v Collins)

Sub Step 5: If the search was unreasonable (without a warrant), is there a system of prior authorization? (Hunter v Southam)
In order for it to be valid, the search has to be pre-authorized, at a minimum, by someone capable of acting judicially(HvS)
In Hunter v Southam, it was held that the RTPC member “cannot be the impartial arbiter necessary to grant an effective authorization” because of his relationship with the CI Office” (P. 13)
This system of prior authorization is to provide a consistent standard for ID’ing the point at which the interests of the state prevail over the individual in resisting such intrusions (HvS)

Sub Step 6: What is the minimum requirement that is required before authorization is given?
Here, have to look at what “reasonable” means
Reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure (HvS P. 15)
Therefore, is there reasonable and probable grounds?


If there is a breach, look at whether justified under s. 1


Section 1:
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

Step 1: Is the limit prescribed by law (R v Oakes, affirmed in R v Lucas)?
In R v Lucas, the definition of this is that the limit must provide “an intelligible standard according to which the judiciary must do its work” (Para 29)
This test is adapted from Irwin Toy

Step 2: Does the limit have a pressing and substantial objective (R v Oakes)?
At a minimum, it is necessary that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be defined as sufficiently important (R v Oakes)
In order to determine whether is pressing and substantial, have to adopt a purposive approach to identify the aim or objective of the challenged sections at the time they were enacted (R v Lucas)
In Mentuck, it was held that necessity requires a “real and substantial risk”, the reality of which is well-grounded in the evidence and poses a serious threat to the administration of justice (Para 34)
In Lucas, it was held that the protection of reputation was the goal of the crime of defamatory libel, and this was pressing and substantial – this is affirmed in Hill
In McKinney v University of Guelph, it was held that the preservation of academic freedom is pressing and substantial
In R v Keegstra, it was held that the prohibition of hate propaganda is a pressing and substantial objective
In Law Society v BC, it was held that the regulation and creation of the legal profession and the practice of law is pressing and substantial

Step 3: If there is a pressing and substantial objective, is the limit reasonable and demonstrably justified? (R v Oakes)
This involves using the “a form of proportionality test” from R v Big M Drug Mart – three steps (All from R v Oakes):

1. The measures adopted must be carefully designed to achieve the object in question
Therefore, they must be “rationally connected” to the objective (Para. 70)
Must not be arbitrary, unreasonable, or unfair
Show the connection between the means used to limit the right and the law
Have to prove that the connection between the presumption and the inference is rational
In R v Oakes, it was held that there was no rational connection between the basic fact of possession of a narcotic and the presumed fact of possession for the purpose of trafficking
It would be irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics
In McKinney v University of Guelph, it was held that removing a mandatory retirement age would affect the job security afforded by the tenure system
Therefore, the mandatory retirement age ensures continuing faculty renewal, a necessary process to enable universities to be centres of excellence (Para 64)
In R v Keegstra, it was held that there is a rational connection between the prohibition of hate propaganda and criminal laws to that effect
In Law Society of BC v Andrews, it was held that there is no rational connection between the objective of qualifying lawyers that are familiar with Canadian institutions and a citizenship requirement in admission to the Bar; Citizenship doesn’t automatically mean an attachment, and non-citizens may be deeply committed to Canada
However, they held that there is no impediment on getting citizenship, so it’s not a big deal

2. Even if rationally connected to the objective, the means should impair “as little as possible” on the right or freedom in question
Per R v Keegstra, legislation should be carefully tailored so as to minimize the impairment of the right
It must be “a narrowly defined offence which suffers from neither overbreadth nor vagueness” (Para 132 R v Keegstra)
In R v Lucas, the SCC rejected the argument that defamatory libel can be argued in civil law, and therefore a criminal provision does not minimally impair the right
The civil and criminal law serve different purposes - Criminal law = meant to punish and recognize a social wrong; civil law = compensation by awards of damages for injuries suffered by the plaintiff
In RWSDU v Dolphin Delivery, it was held that a restraint on picketing so far as necessary to ensure it doesn’t escalate beyond the actual parties is a minimal impairment on the right (Para 23)
In McKinney v University of Guelph, it was held that a mandatory retirement age ensures that faculty members, while in the tenure system, have a “large measure of academic freedom with a minimum of supervision and performance review throughout their period of university” (Para 69)
Therefore, the court realises that it will cause detriment to some, but the detriment to those affected must be weighted the benefit of the universities’ policies to society generally and the individuals who compose it
Without this policy, then it would discriminate against young academics who are seeking tenured positions
In R v Keegstra, it was held that hate propaganda legislation minimally impair the right because it had within it numerous definitional limits which “act as safeguards to ensure that it will capture only expressive activity which is openly hostile to Parliament’s objective and will thus attack only the harm at which the prohibition is targeted (Para 119)

3. There must be a proportionality between the effects of the measures which are responsible for limiting the charter right or freedom, and the objective which has been identified as of “sufficient importance”
The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society
R v Lucas supports the use of a scale: if the offence committed is serious, it is so far removed from Charter values that it should be accorded a low or minimal degree of protection of the Charter
“it would trivialize and demean the ... rights guaranteed by the Charter if a significant value was attached to the deliberate recounting of defamatory lies that are likely to expose a person to hatred, ridicule, or contempt (Lucas Para 93)
This is reinforced by R v Keegstra, in which it was held that the laws take aim at a special kind of special activity which is only “tenuously connected with the values underlying the guarantee of freedom of speech” found in Irwin Toy (see s. 2(b))
This step is meant to determine whether a law is too broad, too unfair
Also, look to see if other Charter rights are being infringed, etc
In R v Mentuck, it was held that unnecessary publication bans could have serious deleterious effects, since the freedom of the press would be “seriously curtailed” in respect of an issue that may merit widespread public debate (Para 50)
Improper use of bans, in order to hide police conduct from public scrutiny, deprives the Canadian public of the vital right to know and respond to police practices that could erode “the fabric of Canadian society and democracy” (Para 51)

Section 11(d):
“any person charged with an offence has the right...to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”

What is the presumption of innocence entrenched in s. 11(d) of the Charter? (All from R v Oakes)
i) The presumption of innocence is a hallowed principle lying at the very heart of criminal law
Although it is expressly protected in s. 11(d) of the Charter, it is referable and integral to the general protection of life, liberty and security of the person contained in s.7 of the Charter
It protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct
It ensures that until the State has proven the accused’s guilt beyond a reasonable doubt, he or she is innocent
This is essential in a society committed to fairness and social justice (Para. 29)
ii) The presumption of innocence has enjoyed a longstanding recognition at common law
Leading case – Woolmington v DPP – “it is the duty of the prosecution to prove the prisoner’s guilt...if, at the end of an on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, [as to their guilt], the prosecution has not made out the case and the prisoner is entitled to an acquittal” (Para 30)
Iii) The acceptance of this principle is also shown in major international human rights documents
For example, in Article 11(1) of the UN’s Universal Declaration of Human Rights

The right to be presumed innocent until proven guilty requires that s. 11(d) have, at a minimum, the following content (R v Oakes).
STEP 1: First, an individual must be proven guilty beyond a reasonable doubt.

STEP 2: Second, it is the State which must bear the burden of proof.
Per R v Oakes, a reverse onus clause that requires the defendant to bear the burden of proof is a prima facie violation of the Charter
In this case, it involved s. 8 of the NCA that required to accused to prove on a BoP that he was not in possession for the purpose of trafficking.
Because, in this case, it was on the civil standard (BoP), it was held to be less onerous than requiring proof on the criminal standard (beyond a reasonable doubt)
Also, this is affirmed in R v Keegstra – whenever there is a reverse onus provision, there is an infringement of s. 11(d)

STEP 3: Third, criminal prosecutions must be carried out in accordance to lawful procedures and fairness – shown in “according to law in a fair and public hearing by an independent and impartial tribunal”

If there is a breach, look at whether justified under s. 1

Section 2(b)
“Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”

STEP 1: Is there a breach?
Under s. 2(b) the SCC has consistently held that all expression is protected, regardless of its content, unless the form in which the expression is manifested is such that it excludes protection (as, for example, a violent act)” (Para 25 – R v Lucas)
Therefore, all expression is protected, regardless of its form or content
The only limit on this right is that violent expression is not protected
This is reinforced by Irwin Toy, in which it was held that “activity is expressive if it attempts to convey meaning. That meaning is its content”

Sub Step 1: Does the action in question involve some form of expression (non-violent) (R v Lucas)
In RWDSU v Dolphin Delivery, it was held that picketing involves at least some element of expression, and is therefore protected under the Charter
In R v Keegstra, it was held that anti-Semitic statements which wilfully promote hatred against an identifiable group convey a meaning and are therefore protected under the Charter
The negative aspect of these statements, per Irwin Toy, are irrelevant in determining a s.2(b) breach

Sub Step 2: Was the purpose of the impugned government action the restriction of freedom of expression (R v Keegstra)
In R v Mentuck, it was held that a publication ban is only justified in the following circumstances (applied from Dagenais):
1. Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available measures will not prevent the risk, AND
2. The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban
If so, then there is a prima facie infringement of the Charter

If there is an infringement, go to s. 1 of the Charter to see if justified
For the sake of a s. 1 analysis, will need these to determine deleterious effects:
Irwin Toy stressed the values underlying the freedom of expression: (purposes of 2(b))
1. Seeking and attaining truth is an inherently good activity
2. Participation in social and political decision making is to be fostered and encouraged
3. Diversity in forms of individual self-fulfillment and human flourishing should be cultivated in a tolerant and welcoming environment for both those who convey and meaning and those to whom meaning is conveyed

Section 7:
“Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”
“Everyone” = doesn’t include corporations, or a fetus
The SCC has interpreted the second part as a limitation on the first
You can be deprived of “life...” if it is in accordance with the “principles of...”

STEP 1: Is there a breach?

Sub Step 1: Is the provision so vague that it contravenes s. 7 of the Charter?
Cory J states that there are two factors to be used to determine vagueness of a provision (R v Lucas)
1. It is vague if it does not provide “an intelligible standard according to which the judiciary must do its work” (Para 29) – this is the test to determine if prescribed by law
There is a sufficient “intelligible standard” such to give an adequate basis to apply the law and give fair notice to the citizen of the law
2. A law is also vague if it does not sufficiently “delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion” (Para 29)

Sub Step 2: Does the impugned legislation violate liberty of the person?
Therefore, ask: does the impugned legislation contain an absolute liability offence? (RE BC MVA)
If there is an absolute liability offence coupled with a punishment of imprisonment, it will violate s. 7 of the Charter (Re BC MVA)
However, it will violate s. 7 only if and to the extent that it has the potential of depriving life, liberty, or security of the person (Para 76)
It is a violation of s. 7 if it impacts upon the right to liberty for a limited number of morally innocent persons (RE BC MVA)

Sub Step 3: Does the impugned legislation violate security of the person?
“This encompasses a notion of personal autonomy involving, at the very least, control over one’s bodily integrity free from state interference and freedom from serious state-imposed psychological and emotional stress...section 7 is also implicated when the state restricts individuals’ security of the person by interfering with, or removing from them, control over their physical or mental integrity” (Para 136 Rodriguez v BC)
Therefore, the right to make choices regarding one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person
It was held in Chaoulli v Quebec that wait times increase risk of death or serious health impairments – therefore waiting lists are an infringement of a right to life

Sub Step 4: What is the purpose of “principles of fundamental justice”?
In Re BC Motor Vehicle Act, it was held that that s. 7 is not to be construed in a more narrow manner than the rights in ss. 8 to 14 (Para 28)
This is because ss. 8 to 14 illustrate the various forms of deprivation of liberty that are in breach of the principles of fundamental justice (Para 29)
Therefore, using the purposive approach, the Court held that the right to liberty would not be narrower than the right not to be arbitrarily detained or imprisoned, and that the right to security of the person would not have less content that the right to be secure against unreasonable search or seizure (Para 27)
Therefore per BC MVA, the principles of fundamental justice are “essential elements of a system for the administration of justice which is founded upon a belief in ‘the dignity and worth of the human person’...and on the ‘rule of law’” (Para 30)
They are found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the...domain of the judiciary as guardian of the legal system (BC MVA Para 31)
It was held in Chaoulli v Quebec that a principle is that laws should not be arbitrary
It will arbitrary if the inference lacks a real connection on the facts to the purpose the inference is sad to serve
It was held in Rodriguez v BC that a principle of fundamental justice is that the human dignity and autonomy of individuals be respected
Therefore, per Cunningham v Canada, the principle of fundamental justice requires a balance between protecting the interests of the person who claims their liberty has been limited as well as the protection of society
Therefore, criminal code provisions prohibiting assisted suicide, although may rob some of their human dignity, it necessary to uphold the respect for life, and therefore doesn’t violate the principle of fundamental justice (Rodriguez Para 174)
Therefore, the “principles of fundamental justice” are not a right, but are a qualifier on the right to life, liberty, and security of the person


Note that in the majority of s. 7 cases, there is no s. 1 analysis
If it violates s. 7, it will most likely be struck down to the extent of the inconsistence

Section 32(1):
“This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province”

Does the Charter apply?
Per RWDSU v Dolphin Delivery, the Charter does not apply, in the absence of government action, to private litigation
It is limited to Parliament, the provincial legislatures, and the exec and admin branches of government
“opening up private activities to judicial review could impose an impossible burden on the courts” (McKinney Para 24)
In Hill, it was held that the Charter could not be invoked in the circumstances to scrutinize the constitutionality of the common law of defamation

Therefore, the tests from McKinney v University of Guelph are to be applied

STEP 1: Does the entity in question perform its functions autonomous of government?
“Just because an entity is subject to judicial review of certain decisions, that does not in itself make them part of government within the meaning of s.32 of the Charter”
In McKinney, universities, who make decisions autonomously of government, are not subject to the Charter because they don’t follow the dictates of government in any way (Para 35)

STEP 2: Does the entity in question receive funds from the government?
If so, then the question is whether the government has control over how the funds are used
In McKinney, the government has no legal power to control the universities or how the funds are put to use (Para 41), and therefore fails this test as well

STEP 3: Does the entity in question have a board of governors or a governing council
If so, then the question is whether the board is run by the government
One aspect to look at is whether the government has members on the board
Another test is whether the board can make decisions without the approval of government
In McKinney, it was held that Per Beetz J in Harelkin v University of Regina, universities are autonomous and run by boards of governors or a governing council, the members of which are elected or appointed independent of government

STEP 4: Is it based on a common law rule which government action justifies or authorizes?
Per Hill, if this is the case, then the constitutionality of the common law could only be analyzed in those situations where a case involved a government action which was authorized or justified on the basis of a common law rule that allegedly infringed a Charter right (Para 83)
However, in Dolphin Delivery, McIntyre said that the Charter can also apply to the common law where the common law would develop in a manner inconsistent with Charter principles
As well, per Hill, in the context of a civil litigation involving ONLY private parties, the Charter will apply to the common law only to the extent that the common law is found to be inconsistent with Charter values (see equations below)
In Hill, a test to analyze a private litigation Charter “challenge” to the common law is as follows:
Charter values, framed in general terms, should be weighed against the principles which underlie the common law
The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary
The traditional division of onus in a Charter challenge should not be applicable to a private litigation Charter “challenge” to the common law
The party alleging that the common law is inconsistent with the Charter should bear the onus of proving both that the common law fails to comply with Charter values and that, when these values are balanced, the common law should be modified

If the entity fails this test, then the Charter does not apply

Application Equations:
Legislation = government action
Common law (doesn’t = ) government action
Government + common law = Charter applies
Government + legislation = Charter applies
Private Party + common law = no Charter
May be subject to Charter values, but the Charter itself does not apply
Private party + legislation

Section 15(1):
“Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination, and, in particular, without discrimination based on age, national or ethnic origin, colour, religion, sex, age or mental disability”

STEP 1: Does the distinction claimed constitute discrimination for the purposes of the Charter?
This is outlined in Law Society of BC v Andrews:
“Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society” (Para 37)
To determine this, have to prove that they failed to receive a benefit the law provided, or were saddled with a burden the law did not impose on someone else (Auton v BC)
Here, it was held that the benefit claimed was not provided for by the law
Therefore, have to determine the appropriate comparator group, then ask whether, as compared to people in the group, the petitioners have been denied a benefit (Auton v BC)
The comparator group should mirror the characteristics of the claimant relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground (Para 54 Auton v BC)

STEP 2: Is the discrimination claimed based on enumerated grounds? (If no, skip to step 3)
Note that for s. 15 to come into operation, the inequality must be made by law – statute or regulation (McKinney v University of Guelph)
If, here, one would conclude that universities are part of government, then their policies would amount to law for purposes of s.15 of the Charter
However, note that in Law Society of BC v Andrews, it was held by Wilson J that not every distinction drawn by law constitutes discrimination
However, it was also held in Andrews that the concept of equality doesn’t necessarily mean identical treatment

STEP 3: Is the distinction claimed based on analogous grounds?
Law Society of BC v Andrews held that a distinction based on citizenship is an analogous grounds for the purposes of the Charter
Per Vriend v Alberta, sexual orientation was read into the Charter as being an analogous grounds

STEP 4: Is the discrimination in a substantive sense - Involving such factors as prejudice, stereotyping, and disadvantage
This is required, as well as an analogous or enumerated ground and “discrimination” per the above to constitute discrimination for the Charter (Law Society of BC v Andrews, affirmed in Law v Canada)
These are the factors to determine whether it is discrimination in a substantive sense (Law v Canada):
1. Pre-existing disadvantage – i.e. aboriginals, women
2. Relationship between grounds and the claimant’s characteristics or circumstances
Does the legislation violate human dignity?
Does the legislation take into account a claimant’s actual situation? i.e. Abos
3. Ameliorative purpose or effects
If it has an ameliorative purpose then it won’t be discrimination in a substantive sense (IF IT DOES, GO TO s. 15(2) ON NEXT PAGE)
4. Nature of the interest affected – have to see if the discrimination goes to the core of one’s dignity

If there is a breach of the Charter, and it cannot be upheld as an ameliorative program per s. 15(2) of the Charter, then see if it can be upheld under s. 1 of the Charter
Section 15(2)
“Subsection (1) does not preclude any law, program, or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”

STEP 1: Does the program have a remedial purpose?
In R v Kapp, it was held that a communal fishing licence granted to aboriginals was part of an attempt to negotiate a solution to aboriginal rights fishing claims
Therefore, it had a remedial purpose

STEP 2: Does the program target a disadvantaged group identified by the enumerated or analogous grounds?
If so, then it is protected by s. 15(2) of the Charter and doesn’t violate the equality guarantee of s. 15

Section 24(2):
“Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”

The accused must prove the following on a balance of probabilities:

STEP 1: Is there a breach of the Charter? (Test per R v Collins)
Has to be of the accused’s rights
i.e. check if the search was reasonable per s. 8 of the Charter
By the state
Has to be determined by a Court of “competent jurisdiction”
To determine if a search is reasonable per s. 8, go to step 4 of s. 8

STEP 2: Was the evidence obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter? (Test per R v Collins)
Has to be a “temporal connection” that is not too remote
As long as you have a breach that precedes the evidence, and they are connected, then that is sufficient (R v Strachan)

STEP 3: Does the evidence obtained impact on trial fairness? (per R v Collins)
Sub Step 1: Was the evidence obtained conscripted or non-conscripted? (If conscripted, go to Sub Step 2, if non-conscripted, go to Steps 4 and 5) (Per Stillman v The Queen)
Conscripted evidence = the accused is conscripted against himself through a confession or other evidence emanating from him – Para 37 R v Collins
Often real evidence that was obtained in a manner that violates the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair (Para 37 R v Collins)
However, in R v Stillman, it was held that real evidence is not necessarily non conscriptive
Where a person, as a result of a breach of the Charter, is compelled or conscripted to provide a bodily substance to the state, it will be conscriptive, even though it is real
“Evidence will be conscripted when, in a violation of his Charter rights, is compelled to incriminate himself at the behest of the State by means of a statement, the use as evidence of the body or the production of bodily samples (Para 80 R v Stillman)
Derivative evidence = subset of conscriptive evidence (Douglas J’s dissent in R v Stillman)
It is where an accused is conscripted against himself, in a Charter violation, which lead to the discovery of a real item of evidence
This idea comes from the circumstances in R v Burlingham, where an illegally obtained confession led the police to find real evidence of the commission of the offence

Sub Step 2: Was the evidence obtained discoverable? (If discoverable and conscripted, move on to 4 and 5) (Per R v Stillman)
The Discoverability or “But For” test – from R v Stillman
1. Did the police have an alternative non-conscriptive means to obtain the impugned evidence, notwithstanding the fact that they obtained it otherwise
If so, the admission may not render the trial unfair – DISCOVERABLE
2. Was the discovery of the evidence inevitable?
If so, the admission may not render the trial unfair – DISCOVERABLE
Per Stillman, discoverability has nothing to do with legality
If the evidence obtained conscripted + not discoverable = EXCLUDE (R v Stillman)
Skip Step 4 and go to Step 5
If the evidence obtained conscripted + discoverable = doesn’t go to trial fairness (Stillman)
Go to Step 4

STEP 4: What was the seriousness of the violation in obtaining the evidence? (Per R v Collins)
Have to look at the seriousness of the violation of the Charter breach (R v Collins)
1. Was it committed in good faith, or was it inadvertent or of a merely technical nature? (R v Collins)
This will not be a serious violation
2. Was it wilful, deliberate, or flagrant? (R v Collins)
If they aren’t following the law = bad faith
3. Was the action motivated by urgency to prevent the loss or destruction of the evidence? (R v Collins)
This will often not be a serious violation on its own
4. Were there other investigatory techniques available? (R v Collins)
If there are legal ways to go about it, then the violation is more serious, in bad faith, etc
Also, can look at if there are multiple violations of the Charter or not, etc.

STEP 5: What is the effect of the exclusion of the evidence? (Per R v Collins)
Therefore, the question under s. 24(2) is whether the system’s repute will be better served by the admission or the exclusion of the evidence, and it is thus necessary to consider any disrepute that may result from the exclusion of the evidence (Para 39 R v Collins)
The SCC held that the administration of justice would be brought into disrepute by the exclusion of evidence essential to substantiate the charge, and thus the acquittal of the accused, because of a trivial breach of the Charter. Such disrepute would be greater if the offence was more serious (Para 39)
However, if it is a serious breach of the Charter, and a serious offence, can’t include the evidence because it may convict someone who is innocent
Therefore, have to look at the seriousness of the breach, then look at the offence and decide the seriousness of the offence
If the admission of the evidence would result in an unfair trial, the seriousness of the offence could not render that evidence admissible” (Para 39)
Therefore, there is a connection between the effect of the exclusion and trial fairness
Trial fairness + serious = exclude (Collins)
i.e. an unfairly obtained confession + serious offence = have to exclude evidence