Seite - 257 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

257Civil Liberties vs. Public Health infringes their Charter rights. In Charter jurisprudence, the question of whether a rights infringement has occurred is separated from whether that infringement is justifiable. The infringement ques- tion is asked first, and the burden is on the claimant to show that an infringement has occurred. At this stage, the guiding principle is that rights should be given a “large and liberal interpretation at this stage.22 The rationale for this, partly, is that the onus on Charter claim- ants should be eased to compensate for government’s vastly superior legal resources. Under this large and liberal approach, it suffices in freedom of expression cases, for example, for the claimant to estab- lish that some content-bearing expressive activity—no matter how trivial or ignoble—has been interfered with by government. Thus, for example, cigarette advertising has been found to fall within the right to free expression.23 If a claimant succeeds at that task, the government then bears the onus, under s 1, of showing that the infringement is demonstrably justified in a free and democratic society. R v Oakes24 is perhaps the most important of all Charter decisions, providing the framework for the application of section 1. The Oakes test specifies that the infringe- ment of a Charter right will be justified provided: 1. the government’s objective in infringing the right is pressing and substantial; 2. the infringement is rationally connected with (1); 3. the right is minimally impaired; and 4. the value of the objective, and the actual costs and benefits associated with pursuing it, are proportionate to the costs of the infringement. 22. Hunter et al v Southam Inc, [1984] 2 SCR 145, 11 DLR (4th) 641. The scope given at the infringement stage varies by Charter guarantee. For example, the s 2(a) protection of freedom of religion has been read broadly to protect against any non-trivial state interference with activities the claimant sincerely believes are connected to their faith; Syndicat  Northcrest  v  Amselem,  2004 SCC 47. By contrast, the courts have circumscribed the s 7 protection of “life, liberty and security of the person” to activities of a deeply personal nature (for example, the decision to have an abortion) as opposed to less-integral lifestyle choices (for example, recreational marijuana use); see, respectively, R  v  Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385 and R v Malmo-Levine, 2003 SCC 74;  R  v  Caine,  2003 SCC 74. 23. RJR-MacDonald  Inc  v  Canada  (Attorney  General), [1994] 1 SCR 311, 111 DLR (4th) 385. 24. [1986] 1 SCR 103, 26 DLR (4th) 200.