Law Notes > Administrative Law Notes
This is an extract of our Charter document, which we sell as part of our Administrative Law Notes collection written by the top tier of University Of Victoria; University Of Toronto students. Review Now
The following is a more accessble plain text extract of the PDF sample above, taken from our Administrative Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Charter Section 7 Framework: CH DPF
-a) Threshold: Applies when "life, liberty or security of the person" are impaired (s. 7)
-*NB: only directly invoke these if trying to challenge a specific statutory provision> if not, you get the same result re scope of PF under CL
-applies in narrower contexts than CL DPF but is more expansive pfjs encompass CL DPF, but the CL DPF is not constitutionalized (Singh)
> everyone "physically present in Canada and by virtue of such presence amenable to Canadian law" is entitled to s. 7 right (Singh)
-examples of s 7 values engaged: o Where it involves action overseas, there must be a causal connection to the Cdn govt (Suresh): o Refoulement or prolonged/indefinite detention (Charkaoui) o Serious state-imposed interference with psychological integrity (G(J): welfare authorities seized child) o Deportation to face persecution (Singh) or significant risk of torture (Suresh) o Delay caused by ODSP eligibility process such that it caused extreme hardship (Wareham)
-examples where s 7 not engaged: o Reputational or psychological stress does not qualify unless it is extreme (Blencoe) o Delay from an admin proceeding does not qualify unless it is extreme (Blencoe) o Extended detention scheme if accompanied w regular review (Charkaoui)
-b) Content of CH DPF
? Where statutory scheme infringes the CH DPF, a ct may use the CH may strike statute and impose requirements (Suresh> use Baker factors)
? PFJs are flexible in their content, s 7 does not require a particular type of process but a fair process having regard to the nature of the proceedings and the interests at stake (Charkaoui) o CL informs content of duty once threshold is crossed: the greater the interests at stake, the greater the procedural protections (Suresh) o Encompasses the right to a fair hearing, specifically (Charkaoui):
? An independent adjudicator
? Right to know the case against you
? The right to answer that case o Oral hearing is required where credibility is at issue (Singh) o Requires reasons (Suresh) o Encompasses disclosure, but not required if the material is a legal opinion or can be limited if the materials are sensitive for matters of national security (Pritchard; Suresh; Charkaoui II)
?
Limitations: o Doesn't require state funded counsel (Christie) o weighing of stat objectives and individual's rights should occur in s 1 only (Malmo Levine; Charkaoui)
c) s 1 Security concerns shouldn't be used to justify s 7 violations (Charkaoui) o Courts very reluctant to uphold s. 7 violations under s. 1: that which violates pfjs very unlikely to survive Oakes test (G)(J))
? Not minimally impairing if they are alternate approaches that would better balance stat objectives and individual's rights (Charkaoui) o
o
Examples where violation not justified under s 1: o Singh: IRPA scheme which denied right to oral hearing where credibility at stake o Suresh: exercise of discretion (as opposed to legislation itself that provides discretion) resulting in sending refugees to face torture as the Minister failed to provide adequate safeguards and reasons o Charkaoui: security certificate scheme violates bc in camera, ex parte hearings violates right to a fair hearing as individual doesn't get to respond to case
Buy the full version of these notes or essay plans and more in our Administrative Law Notes.