Section 15 of the “Canadian charter of Rights and Freedoms” contains guarantees for equality before the law. The section prohibits numerous discriminative actions by governments, because it falls under constitutional rights. Discriminative actions highlighted included prejudice and stereotyping. The section, however, exempts affirmative action and rights provided by other sub-sections of the Canadian constitution. While the charter came to force in 1982, section 15 become incorporated in April 1987. The section aimed at protecting individuals from violation of their human dignity (Hogg, 12). The adoption of the section allowed provincial governments’ time to identify, and make appropriate amendments to discriminatory laws within provincial jurisdiction. Andrews test is the test outline that was set by the court to determine whether there was a violation of equality rights in this case. In determining discrimination, there are three basic steps which are followed as will be mentioned below and expounded in details in the rest of the paper.
- Was there differential treatment imposed to the claimant against the comparator group, imposed by the program or the law under question?
- If the differential treatment was there, was it based on parallel ground?
- If point two above, was the law having a discriminatory effect within the equality guarantee meaning?
The Andrews test became the first case in the Canadian Supreme Court dealing with section 15. The case involved a British citizen who had been denied admission into the Canadian bar. The court identified Andrews test as the reason for failing to admit him, though he possessed all other necessary requirements. Andrews challenged the requirement of statutory citizenship for admission into British Columbian legal profession. Formal equality test was considered by the court of appeal. The court favored a substantive equality approach in determining the violation of equality rights.
The Andrews test relates to R. v. Kapp as both cases became appeals in the British Columbian appellate court form the Supreme Court. The latter case involved rights granted by the government. The court determined that government programs could not constitute discrimination. The precedence for the case became the Andrews test. The Supreme Court dismissed the appeal based on target for the presumed discrimination. The court found the discriminatory action to target improving lives of disadvantaged individuals. The reasons for the ruling given by the Supreme Court included the desire to maintain consistency in defining equality. The basis for definition became the Andrews test. The Andrews test had been the first case arguing section 15 of the Canadian Charter of Rights and Freedoms.
Section 2b of the Canadian charter of freedom of expression describes the fundamental freedoms allowed within the context of the section. The section does not contain exemptions as it includes press and media freedoms. Commercial expression in the form of advertisement becomes protected under this section of the constitution. The commercial expression protection became recognized following the Ford v. Quebec case of 1988. The Québec law required advertising to be carried out exclusively in French. The law seemed discriminatory of the advertising language leading to the striking down of the case. Subsequently, provisions for the commercial expression also found limiting advertising to children as denying commercial expression. This judgment was contained in Irwin Toy v. Québec.
The commercial expression protection, provided for freedom for advertisers to advertise their products in appropriate methods. The two cases mentioned above appeared to violate the commercial expression protection sections of freedoms and rights immensely. The section protects professionals by providing the freedom to advertise in the appropriate mode identified. In the Zundel case, the criminal act of falsifying information could not charge Ernst Zundel. The freedom of expression charter struck down provisions of the Canadian criminal code. The provisions were found to grossly violate the freedom of expression provided under the Canadian constitution. The charter provides and defines the fundamental freedoms provided by the Canadian constitution. Contradictions in the Zundel case concerned the violation of the criminal code through the provision of false information. The freedom of expression seemed violated as the accused only presented personal opinions regardless of their truth.
Bibliography
Hogg, Peter. Constitutional Law of Canada (Student Ed). Ontario: Thomson Canada Limited, 2003. Print.