1

CHARTER TESTS AND FRAMEWORKS General Framework

1. Does the CH apply?
a. S. 32 analysis

2. Does the impugned law infringe a right?
a. ss. 2(a), (b), 15, 7 b. no presumption of constitutionality c. onus is on the rights holder to prove infringement (Motors Vehicle, Big M, Oakes) d. purpose of approach to interpretation (Big M) e. violations can occur either thru purpose (assessed 1st, does not shift over time, use original purpose) (Big M; Irwin)

3. If so, can infringement be justified?
a. 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: a. 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 b. exceptions: if case is "essentially public" (ie: where govt is taking action), CH applies to CL (Hill), e.g. crim law c. 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

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) Factors Going to Government Actor

Factors Going to Private Actor

-creature from statute*(McKinney, Stoffman, Douglas)
-heavy public funding* (McKinney)
-appointment of board - majority/all (Stoffman, Douglas)
-no mechanism to reflect society in board, board w/o limited terms, no tenure (Douglas)
-appointments to board at pleasure (Douglas)
-programs requiring approval (McKinney)
-by-laws req approval (Stoffman)
-provision of public good, part of education (McKinney)
-funding control through medicare (Stoffman)
-gov't can require new by-laws (Stoffman)
-existence of extraordinary, not private powers, i.e. expropriation.
***not sufficient in and of itself (McKinney)

-minority of board appointed by gov't (McKinney)
-hiring/operational decisions independent (McKinney)
-day to day operation independent; government control only ever exercised in extraordinary circumstances? (Stoffman)
-extensive budgetary discretion (McKinney)
-principles of academic freedom go to prevent gov't interference (McKinney)
-groups in civil society submit nominees for board then cabinet selects (Stoffman)
-financial autonomy (McKinney)
- "Crown agent" in enabling statute (Douglas)
-board has tenure, job security (Stoffman, McKinney)

THEME: Control of routine decisions rest w/govt: must be involved in day to day operations (trilogy cases)

THEME: Some autonomy, operational control does not overwhelmingly involve gov't.

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)

3 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

4 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 Pro Claimant
-includes right to commercial expression (RJR, JTI, Irwin, Ford)

Pro Govt
-limit: cannot have form that is violent or destroys property (Dolphin, Irwin, Keegstra)

-includes a right not to be spoken to (RJR, JTI, Slaight)

-test for assessing if expression in public location is excluded: (Montreal) i) compatability w/ historic and actual function of place ii) does expression undermine 2(b) values?

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: Pro Claimant
-right can be infringed both by either purpose or effect (Big M)
-purposefully infringed:
- intent of govt action is to single out content > immediately triggers s.1 analysis
-i.e. ban on advertising (RJR, Irwin)

Pro Govt

5
-effects based infringement: related to form, reg of time and place, reg of consequences of expression

-effects based infringement:
-burden is on C to demonstrate that their activity is linked to one of the three underlying purposes (Keegstra): i) democracy; ii) truth; iii) self-fulfillment
-C may need to prove that other avenues of speech are exhausted (Levine, JTI)

B. Positive Claims (Baier)
> if one not met, do not need to consider others
-if met, triggers s. 1 analysis Dunmore Factor i. must be based in CH freedom, not statute or policy ii. substantial interference w/ 2(b), either thru purpose or effect (meeting of evidentiary burden) iii. state responsible for inability of claimant to exercise freedom

Pro Claimant

Pro Govt

Buy the full version of these notes or essay plans and more in our Constitutional Law Notes.