Charter Analysis Framework

CHARTER ANALYSIS FRAMEWORK

PRELIM ISSUES: can they bring a charter challenge? if corporation? Can enforce b/c s24(1) (Big M)

DOES THE CHARTER APPLY?
S32 if legislation, it applies!!
Part of govt (“organizational control” by Ministers of Crown) (McKinney)
Specific govt function delegated under legislative authority (McKinney)
Quintessentially govt (Godbout)

BREACH OF CHARTER RIGHT?

2(a) Religion / 2(b) Expression / S15 Equality / S7 Life, Liberty, Security

Purpose

Scope: freedom from coercion, equal treatment
If Necessary

Effects
Adverse Impacts

Consider s27 /

Purpose

Scope: broad, convey meaning
If Necessary

Effects

3 rationales:
Political
Search for truth
artistic

Ameliorative Purpose s15(2) justifies

S15(1) Breach?
Distinction of treatment on Enumerated/Analogous
w/ Discrimination
Perpetuate Prejudice
Pre-existing disadv.
Nature of interests
Stereotyping
Correspondence
Ameliorative purpose
*Adverse Effects
Govt implicated?
If yes, standard of comparison?

/ Scope: currently not clear but is interpreted as deprivation of right, “living tree” wrt positive obligation
There is 2 stage test but two different and equally authoritative interpretations
BinnieLeBel approach (Chaoulli)

Are s7 interests impaired?
Right to security: high standard
Is impairment in accordance with PFJ?
Requirements for PFJ
Legal principle
Social consensus
Fundamental operation of legal system
Manageable standard
Arbitrariness = no relation/inconsistent to ends

McLachlin & Major approach (Chaoulli)

Are s7 interests impaired?
Right to security: low standard (waitlist ok)
Is impairment in accordance with PFJ?
Arbitrariness = measure not necessary to achieve the objective

WEIGH THE TESTS & decide which fits better
Consider: deference, embedded common sense ideologies

JUSTIFIED UNDER S1?
Prescribed by law
Pressing and substantial objective
Proportionality Test
Rational Connection
Minimal Impairment **most critical!
General Proportionality
Balance interests, catch-all
Disproportionate effect on a group

*Policy Consideration: social policy = more likely deference to legislature

CONCLUSION: If invalid of no force & effect (s52)

Exam Strategy

-do analysis & application as you go: this will draw out new issues as you work with it

-Tests are really general, use the cases as examples of things that do and do not satisfy the tests – look for examples that fall on the right or wrong side of the line

-PUT YOURSELF IN SHOES OF LAWYER ARGUING CASE OR JUDGE: can’t leave matter unresolved, have to give both points but then give your best opinion about where court will fall and why – should know what will guide the courts application

-Use the language that the court uses!!

-Need to reflect subtleties in the law!!

Key considerations

-tensions between various groups give rise to constitutional challenges

-how do you make a decision about what is right for the Canadian community given competing values and interests?

Sometimes the law lacks the ability to effectively respond – can be insidious rather than inspirational

-Think about what the implications are for justice

Court is trying to create a just and equitable system: sometimes in an effort to do so though it reinforces sinister inequities but its purpose is to try to create a broad standard to guide the public

-recognize complexity of modern world and creating spaces where different powers can “live” together rather than attempt to create bounded spaces

-living tree doctrine

especially in dealing with the constitution “a living tree planted in Canada that is entitled to grow and flourish to its full extent”
this doctrine emerged in the Person’s case (affirmed in Re: Same-Sex Marriage); powers are not frozen in time

-law shifts to respond to broader shifts within society – think about context of decision maing

-courts create tests as provisional attempts to navigate the legal systems – these tests are altered in future cases depending on how underlying forces are understood

struggle for clarity within formal tests
tests are only as good as the last case and can be questioned and adjusted in response to new situations

CHARTER ANALYSIS

PRELIMINARY ISSUES

S24(1): discuss if it’s a case where corporation can bring an action (it can! As per Big M Drug Mart)

Fundamental freedoms aren’t freedoms to do anything they are freedom to do what is defined as that freedom by the govt, freedoms are defined narrowly in a what to make it efficient for the govt while still maintaining “nationalism” encouraged by the Charter

DOES THE CHARTER APPLY?

S32 of charter states when the charter applies

-if legislation Charter clearly applies

-charter does not apply to private litigation btwn parties but common law should develop in accordance with Charter values (therefore if admin tribunal/common law consider charter but don’t apply strictness of charter analysis) (Dolphin)

-privateactivity is excluded from the Charter

b/c it would be like setting up an alternative tort system

(Re Bhindi and BC Projectionists quoted in McKinney)

If not legislation: the Charter might apply if principles met:
Dolphin Delivery left open that subordinate bodies created and supported by Parliament or the legislatures could be governed by the Charter (McKinney)
Is organization in itself a part of govt, if it is the Charter will apply to entire body? (McKinney) KEY FACTOR is organizational control
CHARTER APPLIES / CHARTER DOES NOT APPLY
Must be an “organ of government”(McKinney)
-is the duty of governing body to act at the direction of govt – does the govt have legal power to control the entity if it wished to?
-i.e. subject to legal control of LG in Council
if the govt has “organizational control” such as through “formal structure of legal control by lieutenant council”
Aside: often community colleges b/c governing bodies are usually govt appointees.
Governmental in nature looks to: (Godbout)
-degree of govt control exercised
-govt quality of functions performed / LEGAL AUTONOMY - Does it have its own governing body – university duty “is not to act at the direction of the govt but in the interests of the university” (McKinney)
-manages its own affairs
-allocates its own funds
-“masters in their own houses”
Public purpose is not enough b/c not what s32 calls for (McKinney)
-having public purpose alone is not enough (i.e. universities, railroads, airlines, symphonies, institutes of learning)
Being subject to govt regulations is not enough b/c not s32 (McKinney)
Receiving govt funding is not enough b/c not s32 (McKinney)
Following govt policy objectives based on govt funding is not enough
respondent universities in McKinney b/c of structure of their governing bodies
Collective agreements (Re Bhindi and BC Projectionists quoted in McKinney)
-b/c “to include such private commercial k’s under scrutiny of Charter could create havoc in the commercial life”
-even though agreements provided for by statute, unenforceable at common law and legal status of union derived from statute
If organization is not government, Charter might apply to a specific function only? (McKinney)
CHARTER APPLIES / CASE / CHARTER DOES NOT APPLY
Doesn’t matter if the actor isn’t govt, the nature of the activity itself might be govt
-look at quality of act at issue
-“if the act is truly ‘govt’ in nature – for ex, the implementation of a specific statutory scheme or govt program – the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities” / Eldrige / Provision of higher education is a specific function BUT legal autonomy of governing board seems to be weighed as more important, so charter doesn’t apply (McKinney)
Statute confers direct govt power and authority on a party to perform a function that the govt would otherwise perform
-arbitrator was appointed by govt to make orders of settlement in particular labour disputes therefore part of the “govt administrative machinery” for effecting specific purpose of statute
Law society of upper Canada, charter applies even though not governmental in nature b/c subject to charter “in performing what amounts to governmental functions” / Slaight Communications Inc v Davidson quoted in McKinney
Re Klein discussed in Godbout
If it is ‘quintessentially government function” Charter applies (Godbout)
CHARTER APPLIES
Charter applies to municipalities, why? – seeindicia of “government”: (Godbout)
-Democratically elected by members of public and accountable to constituents (analogous to legislatures)
-Taxing power (analogous to legislatures)
-Empowered to make, administer and enforce laws within a defined territorial jurisdiction  engage in and enforcement of coercive measures
-Exercise powers conferred on them by provincial legislatures who would otherwise have to perform the function of the municipalities themselves, **most significant
-**most important to consider who is the ultimate source of authority and if the entity wasn’t doing it would the govt have to perform that function
-“all the municipality’s powers are derived from statute and all are of a governmental character” citing Slaight
Municipalities  might also stretch to: school boards, police boards, government of aboriginal bands?

CHARTER DOES NOT APPLY:

IF there is legislation where s33 of Charter is invoked and form requirements are met (Ford)

“expressly declare”: have to say going to breach
“a provision”: need to list which rights infringing, section #’s fine
“shall”: can’t apply retroactively, only applies prospective (in the future) or imperative (in the moment)

FREEDOM OF RELIGION - s2(a)

WAS THERE A BREACH OF A CHARTER RIGHT?

Burden is on π (the one bringing the action)

to prove on BOP that a right was infringed

General Considerations (look at under purpose)
Freedom of religion is interpreted broadly as trying to protect:

Freedom from coercion of religious belief or practice
Safeguard religious minorities from ‘tyranny of majority’ (Big M)
Freedom from ‘religious dogma’ (Edwards Books)
Equal treatment of religions (in line with s27)
Freedom of conscience has to be things imposed on you i.e. sanctity of life
Freedom of religion is a positive and negative right b/c protected is right to practice and right not to practice

Requirements

Purpose:
Look at intention and motives at time of adoption (Big M)
Purpose cannot shift/change over time (Big M) BUT, Butler says bad purpose can fall away in favour of good purpose there from beginning
To determine purpose look:
Title and text of act, legislative debates, law commission report (used in Edwards Books)
Character and larger objects of charter, language of specific right or freedom, historical orgins, meaning and purpose of associated rights and freedoms (used in Big M)
Give large and liberal interpretation - apply generous purposive approach aimed at ensuring guaranteed rights and freedoms so individuals have the full benefit of the Charter’s protection (Hunter v Southam, quoted in Big M)
Constitutional Purpose when:
Secular goal
Enforcing a uniform day of rest, benefit workers with uniform pause day (Edwards Books)
Ex. Retail Business Holidays Act in Edwards Books
Unconstitutional Purpose when:
Coercive religious belief or practice
Compelling religious observance (Big M)
Trying safeguard public morality (Big M)
Ex. Lord’s Day Act in Big M Drug Mart
IF LEGISLATION FAILS PURPOSE TEST, NO NEED TO FURTHER CONSIDER EFFECTS SINCE DEMONSTRATED TO BE INVALID (Majority, Big M)
Wilson (Dissent): should look at effect!! Don’t rely on purpose b/c emphasis should be on impact of leg - not whether purpose valid
Effect unconstitutional?
Look at DIRECT effect (actual IMPACT) of legislation
Effect needs to be more than trivial or insubstantial – effect leads to a breach if it interferes “profoundly with personal beliefs that govern one’s perception of oneself, humankind, nature and, in some cases, a higher or different order of being” (Edwards Books)
Constitutional
Equal effects and treatment of religions
Legislative/admin action increases costs of practicing religious beliefs that is trivial or insubstantial (Edwards Books)
Unconstitutional
Adverse Effect (Edwards Books)
Unfair implications for ppl who don’t observe Sundays
Economic penalty for religious observance (require close 2 days/week) (Edwards Books)

Read in line with s27 (preserve & enhance multicultural heritage)

FREEDOM OF EXPRESSION - s2(b)

WAS THERE A BREACH OF A CHARTER RIGHT?

Burden is on π (the one bringing the action) to prove

on BOPthat a right was infringed

General Considerations
Freedom of expression is interpreted VERY broadly!

Does π’s conduct within sphere of conduct protected by freedom of expression?
Violence not protected (Irwin Toy)
Must convey meaning
“if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee” (Irwin Toy)
if activity = purely physical, π have to show it was performed to convey meaning pornography
deals with positive right to express, not the negative right to not express (Keegstra)

Requirements

Purpose:

Any attempt to restrict content is a prima facie violation
How do you decide it is restricting content?
Restrict content of expression by singling out particular meanings to not convey (Irwin Toy)
Ex. Singles out content – can or can’t do certain type of marketing (Irwin Toy, RJR – tobacco unattributed warning)
Any attempt to restrict content to a form is a prima facie breach

How do you decide if it is restricting content by form?

Restrict a form of expression in order to control access by others to meaning being conveyed or control ability of one conveying the meaning (Irwin Toy)
Restrict form
Restrict access to form

Ex. Rule against handing out pamphlets is a restriction on a manner of expression is ‘tied to content’ even if it purports to control litter (ex used in Irwin Toy) VS rule against littering is not a restriction tied to conduct b/c it aims to avoid physical consequences regardless of purpose
Consider: “does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity” (Irwin Toy)

Constitutional

Controlling only physical consequences of certain human activity irrespective of meaning suggests purpose is not to control expression (Irwin Toy)

If Purpose is valid it still might be a breach because of the effect

Effects:

Π must refer to principles/values underlying freedom and how this has led to a breach based on effects (b/c prohibited activity had these qualities)
Principles and values underlying protection of free expression (listed in Ford quoted in Irwin Toy)  seeKeegstra
Seeking the truth
It is an inherently good activity (Ford in Irwin Toy); Keegstra: promotes a ‘market place of ideas’
CRITIQUE: no guarantee that free expression will lead to truth – possible that dangerous, destructive and inherently untrue ideas may prevail at least in the short run (Keegstra)
Participation in social and political decision-making
This should be fostered & encouraged (Ford in Irwin Toy)
Keegstra: Political process - “w/o freedom to comment and criticize, other fundamental rights and freedoms may be subverted by the state”
Artistic Expression has intrinsic value
individual self-fulfillment & human flourishing should be cultivated b/c benefit for individual and those who experience the meaning conveyed (Ford in Irwin Toy)
Ex. Not enough to say shouting has an expressive element, MUST show aim was to convey meaning and how it relates to pursuit of truth, participation in community, individual self-fulfillment and human flourishing

POSITIVE & NEGATIVE RIGHTS

-Dominant interpretation of the Charter is that it is about rights infringement

Positive right: when you want to call the state in aid
Negative right: want to be left alone

-Rights are to be primarily read as negative – Dunmore is a very very limited exception to this in freedom of expression!

-In general all charter rights are read as negative BUT s15 (equality) because of language of substantive equality and equal benefit suggests a positive obligation on government

-Baier(2007 SCC – teachers, no positive obligation)

In order for a positive obligation to be included in the Charter framework, must meet with 3 conditions listed in Dunmore (SCC 2001)
Context for Dunmore: farmworkers selectively excluded from collective bargaining legislation – in the context of freedom of association – 3 conditions are very limited and focused on how by the state excluding protections given to everyone it exposed them to a real risk
1.Claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime
Dunmore: claim about protection of fundamental freedom
2. Claimant must meet evidentiary burden of demonstrating that exclusion from a statutory regime permits a substantial interference with activity protected under s1 or that the purpose of the exclusion was to infringe such activity – the exercise of fundamental freedom doesn’t have to be impossible but claimant must seek more than a particular channel for exercising his or her fundamental freedoms
Dunmore: substantially incapable of exercising their fundamental freedom to organize without protect legislation
3. State must be accountable for inability to exercise the fundamental freedom “underinclusive state action falls into suspicion not simply to the extent it discriminates against an unprotected class, but to the extent it substantially orchestrates, encourages or sustains the violation of fundamental freedoms
Dunmore: exclusion from legislative regime substantially reinforced private interference with fundamental freedoms
these are what you have to work with now but remember it was created in a particular context and in a different context different issues might arise

-Gosselin (2004 SCC)

Positive rights claim was articulated under s7 BUT most of the court stated facts were not sufficient to warrant a positive obligation on the state in this context
Dissent (Arbour)
s7 did apply for positive obligation but didn’t apply anything like the Dunmore factors

EQUALITY - s15

Burden is on π

(the one bringing the action)

to prove on BOP that a right was infringed

Equality rights tend to be interpreted more narrowly
-concerned with substantive equality and not formal equality (Andrews)
Does the program have an ameliorative purpose under s15(2)? (Kapp)

If it is ameliorative then s15(2) applies and an argument under s15(1) can’t be advanced (Kapp)
Where a program makes a distinction on one of the enumerated or analogous grounds but has as its object the amelioration of the condition of a disadvantage group and s15 furthered, the claim under s15(1) must fail.
To uphold the legislation under s15(2), govt must demonstrate:
Program has an ameliorative purpose
Consider drafters statements & if means chosen can possibly & rationally be related to the ameliorative purpose
Must be correlation btwn the program and disadvantage suffered by the group
Program targets a group identified by the enumerated grounds

How do you determine if there is a violation under s15(1)? (Andrews/Law – rearticulated in Withler)

Distinction in treatment on enumerated or analogous grounds (Andrews – formal distinction OR fails to consider)
i.e. personal characteristics that are immutable, unchangeable or changeable only with significant costs
Ex of Analogous: Citizenship status (Andrews), sexual orientation, combination of ethnicity and residence (black in Jane & Finch)
NOTE – not analgous: occupation status isn’t enumerated ground (i.e. teacher (Baier), farmworker(Dunmore)
What does this mean? Look to Halpern, does the impugned law:
Must be discrimination - due to benefit withheld or detriment imposed (Andews)
No longer emphasize the language of “impairing human dignity” (Law) as held to be too vague. Instead, discrimination should be understood as the perpetuation of prejudice or stereotyping (Withler):
Perpetuation of prejudice
Will look at if pre-existing disadvantage and
Nature of interest
Law: if really important then court tends to decide human dignity will not be harmed – look at importance of thing impaired
Stereo typing
Will look at correspondence (aka relationship btwn grounds and claimant’s characteristics or circumstances) and
ameliorative purposes/effects (Kapp says if this applies then s15(1) fails, see s15(2))
If adverse effects discrimination, must consider (Eldridge – concepts lurk in the background)
Is the govt sufficiently implicatedfor it to be responsible?
They are responsible when they have engaged the responsibility – once they have undertook to provide a benefit so now they must make sure that they do so equally (i.e. interpreting for deaf)
Remember there is a limit to what govt will do, they wont do everything
Once determined its an area of govt responsibility, what is the standard of comparison that govt should be held to?
Substantive equality ends up tracking pretty closely what the govt is already doing
This is very specific, think about in what respect ppl have to be treated the same (often very low standard we hold govt too)
ASIDE: one of the benefits of this focus on prejudice/stereotyping is movement away from analysis of mirror comparator groups which allows space for greater complexity and intersectional analysis (multiple potential grounds of discrimination going on simultaneously) (Withler)

LIFE, LIBERTY, SECURITY - s7