TEST FOR CHARTER RIGHTS INFRINGEMENT

Stage 1: Is the action governed by the Charter? (S. 32)

Stage 2: Has there been a violation, infringement of a right? (Burden on individual bal. of prob.)
Stage 3: YES Is the violation (denial, infringement, limitation) justified as a reasonable limit in a free and democratic
society (s. 1)? (Burden on state)

STAGE 1. APPLICATION OF THE CHARTER (s. 32)

Quote section
1.

To whom does the Charter apply? (Dolphin Delivery Ltd)

a) The Charter does not apply to private litigation
b) It applies to government actors
c) See CANS for More on Dolphin
i. Body is exercising a statutory power of compulsion or coercion (labour arbitrator in Eldridge
ii. Body is implementing a specific govt purpose or program delegated by statute Eldridge

2.

How do you define the word government? 3 part balancing of factors required here but do not need to satisfy every element
(McKinney v University of Guelph comes from dissenting judgment) There are three ways in which the Charter may
apply, falling under:
a. Control Test: does the legislature executive or administrative branch of government exercise control over the entity,
question of how much control? OR
b. Government Function Test: whether this is a kind of activity the government is usually involved in and supports OR
c. The Government Entity Test: is there statutory authority that suggests public purposes are being pursued OR

3.

CONCLUSION:
a. Yes/No XXX is a government actor because it passed/did not pass the XXX test
i. Therefore, b/c government actor, s.32 applies
b. HOWEVER, the impugned conduct is a [Governmental Act OR sufficiently independent one] The rule in Blaney
states that the Charter will apply to private parties when one of the parties is relying on some government action to
justify their infringement.
i. Therefore, b/c governmental act s.32 applies.
c. In this case32(1)(a) or (1)(b)? (a FEDS, bProvinces)

*balance all 3 elements, you dont need all 3 present, but do an analysis on each element and conclude why the
charter would or wouldnt apply based on weighing in your analysis on each element (even if charter doesnt apply
you wouldnt stop, you would although it doesnt apply here, presume it did, heres what we would do next)

If it isnt government actor/act presume it is and continue w/ analysis in case that X is in fact a
government actor/act..

STAGE 2. INFRINGEMENT (s 2(a), 2(b)

TEST FOR FINDING A VIOLATION OF FREEDOM OF RELIGION S. 2(A)

STEP 1: Write Out Section

s.2a (SEE CANS)

STEP 2: DEFINITION, INTRODUCTION

1.
2.

Definition of what is freedom of religion?

The claimant must show that they have a practice or belief which has a nexus associated with religion.
a. (emphasis is on personal choice, not whether it is recognized by religious expertsfreely and deeply held personal
convictions or beliefspersonal to the individual and not the group)

3. Syndicat v. Amselem was a very powerful judgement. It created a test to asses whether there was an infringement
of the s.2(a) right. go to CANS for test
4.

5.

6.

7.

The claimant must also show that their belief was sincere at the time of the alleged infringement. (the test for sincerity is
minimal)
a. Sincerity only requires good faith and can be implied through consistency of actions.
Court doesnt want to inquire into worth or value of belief
Also, not every belief is worth a while, trivial beliefs wont be considered sincere (Bruker, divorce case, guys
wasnt actually sincere just giving ex-wife a hard time)
What is the purpose and effect of the legislation (is it secular or religious)
a) Purpose: by religious purpose, the impugned legislation either restricts religious practice, or the person thats compelled
by the state of a course of action or inaction, which he would otherwise have chosen. (Big M)
b) Effect analysis SEE CANS
Is the violation of religious freedom a non-trivial or substantial interference with the exercise of the right to practice?
(objective test)
a) Whether or not there is pressure or compulsion must be assessed from the claimants point of view
b) Ability to exempt may impose compulsion to conform to religious practices of majority
c) Right to be exempted doesnt overcome infringement of freedom of religion/conscience (not trivial)
If there is a violation, is it justified under S.1 [chapter 18 justification]?

*Remedies for this section you would talk about having an exemption for the group whose religious belief is
infringed upon.

TEST FOR FINDING A VIOLATION OF FREEDOM OF EXPRESSION S. 2(B)

STEP 1: Write Out Section

2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of
communication.

STEP 2: INTRODUCTION
1) Was the Plaintiffs activity within the sphere of conduct protected by freedom of expression?
a) Expression must have both content and form (Irwin)
b) See CANS FOR better explanation
2) Does the method or location of this expression remove that protection [Montreal v Quebec]
Expressive activity should be excluded from the protective scope of S. 2(b) ONLY IF its methods or location clearly
undermines the values underlying S. 2 (b) (democracy, truth, self-fulfillment)
Whether the public place where one would expect constitutional protection for free expression on the basis that expression
in that place does not conflict with the purposes to which s. 2(b) is intended to serve
Consider (a) historical or actual function of the place (b) whether aspects of the place suggest that expression within it
would undermine the values underlying expression (c) whether the public is ordinarily admitted to the property as of right
(d) the traditional openness of the property for expressive activity
3) Does the claimant claim a POSITIVE entitlement to govt action, or simply the right to be free from govt interference?
General rule: S. 2 does not require positive govt action; imposes negative obligations. Though they dont have to go out of
their way to give you rights, they cannot infringe on the ones you do have.
o Only in exceptional cases will s. 2(b) impose a positive obligation on the govt to protect or assist in expressive
activity
o IF it is a POSITIVE RIGHTS CLAIM, THREE factors must be considered (Dunmore v AG of Ontario) SEE
CANS for 3 factors
4) An act of expression taking a violent form is NOT EXPRESSION (Irwin)
The ACT of violence is not protected under s. 2(b)
Threats of violence or advocating violence may RECEIVE charter protection
See KEEGSTRA (FACTORS)
5) Was the PURPOSE or EFFECT of the govt action to restrict freedom of expression?
1.

2.

Does the PURPOSE of the restriction prevent conveyance of message (low threshold for purpose)? (SEE CANS)
If the govts purpose was to restrict the content of expression (Irwin Toy)
If the govt only aims to control the physical consequences of certain human activity, regardless of the meaning
being conveyed, its purpose is NOT to control expression
o THEN if it was NOT the govts purpose to restrict the content of expression, the court must move
on to an analysis of the effects of govt action
Is the prevention an EFFECT of the restriction?
Burden is ON THE PLAINTIFF to show that the govt controlled or restricted attempts to convey a meaning, even if it was
not their intention to do so
Plaintiff must state their claim with reference to the principles and values underlying the freedom or expression (Ford v
Quebec):
i.
Assuring individual self-realization
ii.
As a means of attaining the truth
iii.
As a method of securing participation by the member of the society in social, and political decision making
(democracy)

STEP 4: Conclusion
Since it passes Irwin/Beir/MTL/GVTA XYZ etc.

Stage 3. Justification
st

*Talk about in detail in 1 question on exam, but moving onwards in other questions dont need to explain each
part of test, just apply the facts

STEP 1: STATE THE LAW

s.1 (SEE CANS)

STEP 2: Introduction

The final step is to determine if these violations can be saved by section 1. The government/party wishing to uphold the law has
this burden based on a balance of probabilities.
The onus is on the party seeking to uphold the limitation (usually the government), on a civil std of BoP. there needs to be a
high degree of probability even though this is a civil standard, this is a serious burden and there must be clear and convincing
evidence.

THE 4 STEPS OF THE OAKES TEST

1. Objective must be of SUFFICIENT IMPORTANCE to override a constitutionally protected right or freedom. An objective will
be sufficiently important if:
1) Pressing and substantial
2) Consistent with the values of a free democratic society
Must be a high standard so that objectives which are trivial/discordant with the principles integral to a free and democratic
society do not gain s. 1 protection STRICT scrutiny
Prescribed by law threshold criterion rule of law that laws should not be applied arbitrarily and that laws must be
accessible to citizens and cant be overbroad (Therens)
2.
3.

The party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified
THREE elements to this TEST:
1) Rational Connection between means imposed and the objective sought
Law has to be carefully designed to achieve the objective
The govt must demonstrate only that the measured used may further the govts objectives and not that it
will necessarily do so
2) Minimal impairment
The law should impair a right no more than is necessary in order to achieve the objective sought
Should not be VAGUE or OVERBROAD
3) Proportionality/balance between objective and effects
Must be a proportionality between the effects of the measures which are responsible for limiting the Charter
right or freedom and the objective which has been identified as of sufficient importance (Oakes)
B/c of the severe and deleterious effects of a measure on individuals or groups, the measure will not be
justified by purposes it intended to serve (Oakes)
Should take into account the deleterious and salutary effects of the measures (Dagenais)