Charter Analysis

A. PRELIMINARY ISSUES: STATE ACTION DOCTRINE & STANDING

State Action
Charter only applies to state action (s. 32 Charter, Dolphin Delivery). Not restricted to government
because we dont want to allow delegation of Charter violation. Must be one of the following:
Government actors/public actors (McKinney, Godbout)
o Entity controlled by government
o Entity exercising governmental functions
Governmental act/non-state actors/private actors (Eldridge)
o Entity implementing government program (PHS)
o Entity exercising statutory powers of compulsion, arbitrator
Governmental inaction (Vriend, Dunmore)

Examples of application: legislation (e.g. Criminal Code), municipalities
Examples of non-application: universities (McKinney)

Standing
Only those with standing may bring a charter challenge to court. Must be one of the following:
Anyone directly prosecuted under a provision (defense)
o To challenge law a corporation may seek to argue the infringement of someone
elses Charter rights (Big M. Drug Mart)
Anyone whos Charter right has been infringed
Public interest standing (Borowski test)
1. Is there a serious issue raised as to the invalidity of legislation in question?
2. Has it been established that the plaintiff is directly affected by the legislation or if
not does the plaintiff have a genuine interest in its validity?
3. Is there another reasonable and effective way to bring the issue before the court?

B. INTERPRETATION/ASSESSMENT OF STATUTORY PROVISIONS, REGULATIONS OR GOVERNMENT
ACTION

C. IDENTIFY KEY CHARTER RIGHTS OR FREEDOMS AT ISSUE
Freedom of religion (s. 2(a))
Freedom of expression (s. 2(b))
Life, liberty and security of the person (s. 7)
Equality rights (s. 15)
Minority language education rights (s. 23(3))

D. DOCTRINAL FRAMEWORKS (TESTS)
General statement: The charter rights will need to be assessed with a purposive approach that
recognizes the status of the Constitution as a living tree (Hunter v. Southam).

Freedom of religion (s. 2(a))
Definition: Freedom of religion consists of the freedom to undertake practices and harbor beliefs,
having a nexus with religion, in which an individual demonstrates he or she sincerely believes,
irrespective of whether a particular practice or belief is required by official religious dogma or is in
conformity with the position of religious officials (Amselem, Multani)

Test: (Big M Drug Mart, Multani)
1. Sincere belief?
2. Does purpose of law violate s. 2(a)?
o No shifting purpose
o Ex: Lords Day Act (Big M Drug Mart)
3. Does effects of the law violate freedom? (i.e. neutral rules can still cause adverse effect)
o Ex: Saturday working rule (O'Malley v Simpsons-Sears), universal photo IDs
(Hutterian Brethren), no weapons rule (Multani)

Freedom of expression (s. 2(b))
Test: (Irwin Toy)
1. Did the activity count as expression?
o This test is very broad: 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)
o Any non-violent activity that conveys a message (e.g. choice of language,
picketing, advertising, soliciting for prostitution) (Dolphin Delivery)
2. Did the governments action have the purpose of restricting freedom of expression?
o Here the judges make a distinction between restrictions on forms of expression
(e.g., anti-pamphleting laws) and restrictions on the physical consequences of
forms of expression (e.g. anti-littering laws which affect pamphleting).
3. Did the governments action have the effect of restricting freedom of expression?
o The plaintiff must state her claims with regard to one of the three principles
underlying freedom of expression, demonstrating that her aim was to convey a
meaning reflective of the principles underlying freedom of expression. those
principles being (1) seeking the truth; (2) participation in social and political
decision-making; (3) individual self-fulfillment and human flourishing (Keegstra)

Limitations: Hate speech (Keegstra), sexually explicit speech (Butler), advertising directed at
children (Irwin Toy), defamation (Hill)

Life, liberty and security of the person (s. 7)
Test: (Bedford)
1. Does the law or government action interfere with life, liberty or security of the person?
o Law involving prison term interferes with security of the person (Reference re
Motor Vehicle Act)
o State interference with bodily integrity and serious state-imposed psychological
stress is a twofold breach of security of the person (Morgentaler)
o Withholding beneficial health services infringes on the life of the person (PHS)
o Where a law creates a risk to health by preventing access to health care, a
deprivation of the right to security of the person is made out (Rodriguez)
o Even though the law is designed to protect life, it can still infringe on s.7. by
violating liberty (Rodriguez)
o Choosing to earn a living through prostitution is a liberty (Bedford)
2. Is there a causal connection?
o Requirement of sufficient causal connection between the state-caused effect
and the prejudice suffered by the claimant (Bedford)
3. Is the deprivation in accordance with the principles of fundamental justice? [internal limit
renders s. 1 less important]
a. What is the objective or state interest of the law or government action?
b. Arbitrariness
Absence of a connection between the purpose of the law and its effect on
the individual (Bedford)
c. Overbreadth
Law is so broad that it includes some conduct that bears no relation to its
purpose (Bedford)
d. Gross disproportionality
Laws effects on life, liberty, security of the person are so grossly
disproportionate to its purposes that they cannot rationally be supported
(Bedford)

Equality rights (s. 15)
s. 15(a): Discrimination
Definition: Individual is denied a benefit that others are granted or carries a burden that others
do not, by reason of a personal characteristic that falls within the enumerated or analogous
grounds of s. 15(1). (Withler)[First step distinction]
Enumerated grounds: race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability
Analogous grounds: citizenship (Andrews), sexual orientation (Egan), marital status (Trudel), off-
reserve Aboriginal status (Corbire).
[NOT recognized: employment status, province of residence, persons charged with war crimes or
crimes against humanity outside of Canada, persons bringing claim against Crown]

Test: (Kapp)
1. Does the law create a distinction based on an enumerated or an analogous ground?
(Includes direct differential treatment and adverse effects)
o Adverse effects: Facially neutral law can have a differential impact on the basis
of a prohibited ground of discrimination which results in adverse effects
discrimination (Eldridge). This can be identified by the preponderance of
individuals from particular social groups affected. (Sheppard)
Ex: legislative silence (Vriend), not providing interpretive aids for hearing
impaired patients (Eldridge)
o Analogous grounds: immutable characteristic, beyond the control of the person
(e.g. citizenship) (Andrews)
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
o Substantive inequality may be established by showing:
i. disadvantage when law treats historically disadvantaged group in a way
that exacerbates the condition OR
ii. disadvantage imposed by the law is based on a stereotype that does not
correspond to the actual circumstances and characteristics of the
claimant that leads to prejudice/disadvantage (Withler)
Contextual factors [i.e. modified objective test of reasonable person] (Law):
a. Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced
by the individual or group at issue.
b. The correspondence, or lack thereof, between the ground(s) on which the claim is
based and the actual need, capacity, or circumstances of the claimant or others.
c. The ameliorative purpose or effects of the impugned law upon a more
disadvantaged person or group in society.
d. The nature and scope of the interest of the claimant affected by the impugned
law.

s. 15(b): Affirmative action programs
Definition: There is difference between affirmative action (ameliorating the situation of a
historically disadvantaged group) and substantive equality (nobody is harmed by giving hearing
impaired patients a sign language interpreter this is just substantive equality) (Eldridge)

Test: (Kapp)
1. Claimant must prove there is a distinction made on an enumerated or analogous ground.
2. Before moving to the second step in the s. 15(1) analysis, government can show that s.
15(2) applies:
a. That the law or program has an ameliorative or remedial purpose (must be
genuinely ameliorative);
o Look at the purpose not effect of the law [Note: it does not have to be
the only purpose & laws that restrict or punish do NOT qualify] (Kapp)
o Ex: Ameliorative purpose of program sharing benefits from casino with
only status (Lovelace), remedial purpose of negotiating a solution to
aboriginal fishing rights claim (Kapp), remedial purpose of Metis
Settlement Act denying status-Indians right to become a part of Metis
settlement (Cunningham)
o [Note: Court can analyze if the state acted rationally in the means to
achieve its ameliorative purpose. (Kapp)]
b. That the law or program targets a disadvantaged group identified by the
enumerated or analogous grounds.
o Same analogous/enumerated groups as s.15(1)
o Not every member has to be disadvantaged as long as the group
experienced disadvantage as a whole (Kapp)
3. If it succeeds, then s. 15(2) applies and claimant fails. If not, then return to s. 15(1)
substantive equality analysis. [Note: Section 1 could still be raised]

Note: Underinclusive programs are allowed; Section 15(2) affirms that governments may not be
able to help all members of a disadvantaged group at the same time, and should be permitted to
set priorities. Also, because of mixed identity (e.g. Mtis), not every program must recognize
everyone who holds some claim to a group targeted by an ameliorative program.

Minority language education rights (s. 23(3))
Definition: Language of linguistic minority in Quebec is English, and is French everywhere else in
Canada.

Note: s. 23(1)(a) does not apply to Quebec (political compromise). Language has been considered
to have a double aspect. Language rights is related to freedom of expression (s. 2(b)) (Ford).

Test: (Mahe)
1. Sliding scale approach: depending on numbers, s.23 would justify separate classes,
separate schools, representation on a school board, or a whole separate school board.
o 23(3)(a): Lower threshold for instruction in language linguistic minority (e.g.
classes)
o 23(3)(b): Upper threshold for management and control of facilities (e.g. schools,
school board)

E. SECTION 1 REASONABLE LIMITS ANALYSIS
Reasonable limits (s. 1)
Definition: If impugned law or government action limits or violates a substantive right then ask if
it can be justified under s. 1 (burden of proof on government). Before a party can argue that
competing interests justify the limitation of a Charter right, it must prove that the limit has the
form of law (Irwin Toy).

Test: (Oakes)
A. Prescribed by law Rule of Law (Irwin Toy)
1. Law must be accessible: citizen has to have indication that is in sync w/ legal rules
applicable to a case
2. Must be formulated with precision (to permit regulation of conduct and consequence of
action can be foreseen)
o For a law to be invalidated: A law must not be so devoid of precision in its
content that a conviction will automatically flow from the decision to prosecute
(R. v. Nova Scotia Pharmaceutical Society)
3. Not arbitrary: The limit will be prescribed by law within the meaning of s. 1 if it is
expressly provided for by statute or regulation, or results from the terms of a statute or
regulation or from its operating requirements. The limit may also result from the
application of a common law rule. (Therens)
4. Public accountability

B. Justification - purposive and contextual analysis (Oakes)
1. Objective: pressing and substantial concern such that the objective is sufficiently
important
a. Shifting purpose not allowed (Big M Drug Mart)
b. The Court will consider a new purpose if it is intrinsically linked to the original
(Butler)
c. If the purpose directly contradicts a charter right, it is inadmissible (Big M Drug
Mart)
d. Most cases pass this step (exceptions: Vriend, Big M Drug Mart)
2. Means: means chosen is reasonable and demonstrably justified (3 part proportionality
test)
a. The means must be rationally connected to objective
Judicial deference is appropriate where (1) the issue involves complex
social-science evidence (Irwin Toy), (2) the government is seeking to
protect a vulnerable group (Irwin Toy), OR the government is balancing
the interests of different groups competing for limited resources (NAPE)
A legislation can be justified under section 1, but the way it was
implemented can make the actions unjustified under the same section
(PHS)
Expression: Court must take into account the character of the audience
and the social and historical context of the speech (Mugesera); Factors to
consider: (1) the nature of the harm and the inability to measure it, (2)
the vulnerability of the group protected, (3) subjective fears and
apprehension of harm, and (4) the nature of the infringed activity
(Bastarache J in Bryan)
LLSOP: Parliament has the power to regulate against nuisances, but not
at the cost of the health, safety and lives of prostitutes (Bedford)
b. The means must impair the right in question as little as possible (minimal
impairment test)
Most widely used step to strike down legislation
Outright bans will be difficult to prove as minimally impairing.
Bar of constitutionality must not be set so high as to eliminate
alternatives (degree of deference) (Hutterian Brethren)
Religion: Reasonable accommodation and contextual assessment are
expected (Multani)
Equality: No evidence of the costs and administrative difficulties
associated with other schemes that would give off-reserve members
some role in band governance (Corbire)
c. There must be a balance between the effects of the measure and the objective
(deleterious effects test or the disproportionate effects test)
Courts include salutary effects (secondary positive effects) in assessment
[objective + salutary effects deleterious effects] (CBC)
The more severe the deleterious effects of a measure, the more
important the objective must be
Religion: Conduct which would potentially cause harm to or interference
with the rights of others will not automatically be protected (Amselem);
Allegation of discrimination is not a sufficient standard to violate freedom
of religion (Trinity Western)

F. REMEDIES (s. 52, a. 24)
Remedies re unconstitutional legislation - Supremacy clause (s. 52)
Definition: Used when challenging laws that are inconsistent with Constitution, including Charter.
Only applies to laws, not to actions. " any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or effect.

Remedies:
1. Declaration of invalidity of entire law (Big M Drug Mart)
2. Declaration of partial invalidity
o Severance of one section in the law or some words in a section of a law
(Morgentaler, Bedford)
o Reading in a new word or term to section (Vriend)
3. Reading down (Butler)
o Unlike severance, this just changes the interpretation, not the actual words.
4. Constitution exemptions (not subject to final examination)
5. Immediate effect or temporary suspension of order (Manitoba Language Rights, Bedford)

Guiding principles: (Schachter)
Define the extent of the inconsistency
Deciding whether severance or reading in is appropriate
o Remedial precision: is it a clear, precise option?
Interference with Legislative objective
o Respect for legislative objectives and means
o Budgetary implications (e.g. constraints, priorities)
Change in significance of remaining portion (i.e. is the group to be added much smaller
than group currently included?)
Significance of remaining portion of law: importance of the benefit provided and risks if
struck down


Individual remedies (s. 24)
Definition: A remedy under s. 24(1) is available where there is some government action, beyond
the enactment of an unconstitutional statute or provision, that infringes a persons Charter rights.
(Doucet-Boudreau) an appropriate and just remedy.

Remedies:
1. Declaratory relief (Little Sisters, Eldridge)
2. Injunctive relief (An injunction is a court order that requires a party to do or refrain from
doing specific acts)
3. Damages (Ward)

Guiding principles: (Doucet-Boudreau)
Meaningfully vindicates the rights and freedoms of the claimants (i.e. assess nature of the
right that has been violated and the situation of the claimant)
Must employ means that are legitimate within the framework of our constitutional
democracy (i.e. respect role and limits of judiciary)
A remedy is a judicial one which vindicates the right while invoking the function and
powers of a court
After ensuring that the right of the claimant is fully vindicated, it must also be fair to the
party against whom the order is made
Judicial approach to remedies must remain flexible and responsive to the needs of a given
case (i.e. evolve to meet challenges and may require novel and creative features)

G. SOURCES OF INTERPRETATION
Interpretive Provisions in the Charter, Parliamentary and Commentary Debates, Canadian Pre-
Charter Jurisprudence, Comparative and International Legal Sources
Courts increasingly rely on extrinsic evidence (social science evidence) that document the
historical, social and political context of laws and social practices (Inflation Reference)
Reliance on international law is increasingly important in Charter cases (interpretive aid)
However, it is not binding unless specifically legislatively implemented into Canadian law
o Criminal code provisions sometimes implement international law obligations
Opinion polls are a controversial source of interpretation