#9095 - Charter Of Rights And Freedoms - Constitutional Law

CHARTER TESTS AND FRAMEWORKS

General Framework

1. Does the CH apply?

   1. S. 32 analysis

2. Does the impugned law infringe a right?

   1. ss. 2(a), (b), 15, 7

   2. no presumption of constitutionality

   3. onus is on the rights holder to prove infringement (Motors Vehicle, Big M, Oakes)

   4. purpose of approach to interpretation (Big M)

   5. violations can occur either thru purpose (assessed 1^st, does not shift over time, use original purpose) (Big M; Irwin)

3. If so, can infringement be justified?

   1. S. 1 analysis

4. If not, what is the remedy?

S. 32- Assessing if the Charter applies

Section 32:

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 to all matters within the authority of the legislature of each province.

***note: the CH will always apply

Canned answer for legislation

Per s. 32 all legislation passed by Parliament or provincial legislatures is subject to the Charter. Since ______________ is an act of Parliament/Provincial Legislature it is subject to the Charter.

Framework for Application of CH to CL (Dolphin Delivery)

1. CH only applies to CL where there is govt action, not bw private parties:

1. govt action doctrine: must be a substantial and direct connection bw govt and action

- statutory rules relied on by private litigants are subject to CH scrutiny but CL is not

2. exceptions: if case is “essentially public” (ie: where govt is taking action), CH applies to CL (Hill), e.g. crim law

3. although CH does not apply to CL, it indirectly applies in that CL must be developed in light of CH values (Hill, Dolphin)

-no onus shift: the party alleging their rights are being infringed bears the burden of showing on BoP that CL does not balance the values well enough

-no formal Oakes test – instead, a flexible value balancing exercise

-only incremental changes > CH values provide a guide for modifications

2. If the actor is a govt actor – all of its activities are subject to CH

-judiciary: excluded as seen as a neutral arbitrator (Dolphin)

-municipalities are govt (Godbout)

Since, per s. 32, the Charter applies to government and since ________________ is not a legislative act (including by-law), we must ask whether it is a government actor. If _____________ is determined to be a government actor, then, per Godbout, the Charter will apply to all of its actions, even those of a private nature.

>tests for determining whether it is a govt actor:

i. govt control/ internal autonomy (McKinney, Stoffman, Douglas, Eldridge)

ii. govt function/ govt’l in nature (Godbout)

4. Even if not characterized as govt, can be held to be performing a govt activity:

iii. if implementing a govt policy or program (Eldridge)

iv. if there is a nexus bw legislation and action (Slaight- compulsive power of independent adjudicator)

5. CH does apply to govt inaction, can be failure or omission, underinclusive laws (Vriend)

6. Territorial application: generally assumed it does not apply beyond Cdn borders

a. two exceptions: i) actions which violated Cdn int’l obligations and ii) consent of foreign state (Hape)

Conclude: Despite, _______________ (acknowledge weak arguments), CH applies bc

________________________________________________________________________. The

implications of this are _____________________________________________________.

S. 2(a)- Freedom of Religion

-comprised of 2 concepts:

1) state cannot impose religion

2) state cannot interfere w/ individual religious practice

-limit to freedom> Big M> manifestation of beliefs cannot injure others or impede their right to manifest their own beliefs

-defining religion:

-lack of def in jurisprudence, but def in Amselem as a faith and worship system which tends to involve divine, superhuman or controlling power, defined in individual perspective

-framed as an issue of choice over collective identity (Big M; Wilson Colony)

-broad freedom so most analysis occurs under s. 1

Framework for establishing infringement (Wilson Colony)

1. Belief in a practice that has a nexus in religion

2. Impugned measure interferes w/ ability to act in accordance w/ non-trivial beliefs

> est on BoP

> burden on claimant

Conclude: if BoP met, onus shifts to govt to justify under s. 1

2 (b), Freedom of Expression

-classic first generation right – primarily conceived of in negative terms

-like 2(a), right is very broad and most analysis occurs under s. 1

-ct wary of imposing positive duty (Haig, NWAC) but possibility exists> (Haig, Baier)

Framework (Irwin Toy)

1) Does the activity fall within the scope of protection of 2(b)

-an activity will be given prima facie 2(b) protection if it attempts to convey meaning

-can occur thru either content (message) or form (medium)

-note: unlike other rights, no analysis of purpose of right

2) Has govt action violated freedom of expression? (*includes positive and negative claims)

> Is the claim for the right to be free from govt interference or for positive entitlement to govt action?

A. Negative claims:

B. Positive Claims (Baier)

> if one not met, do not need to consider others

-if met, triggers s. 1 analysis

3) s. 1 analysis (Irwin)

*** go to Oakes pg. 18, but this is a supplement

S. 7: Life, Liberty and Security of the Person

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

Intro

- applies to “everyone,” includes foreign nationals (Singh) but does not include foetuses (Borowski) or corps (Irwin)

-different views about the scope and application of s. 7:

-extends beyond crim law context (G(J))

-need not be limited to ct adjudication, but admin of justice must be engaged, does not include benefit regimes (Gosselin)

-only need govt action> expanded to civil prohibition (Chaoulli)

- first need to determine that one, or more, of LLSP has been deprived by the impugned law

-s. 7 is distinct as it involves a two-stage rights analysis> extra burden claimant thru pfj (an...