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1 What is this document? This document isn t a summary as much as a kind of flowchart to help you with fact patterns in Professor Sheppard s Constitutional Law class. It doesn t summarize the entire course instead, it mirrors the Federalism and Charter Analysis frameworks that she provides and then fills in the blanks with notes, anecdotes, and cases to help you untangle the facts at hand. Please share it using these terms: Attribution- NonCommercial-ShareAlike 2.5 Canada (CC BY-NC-SA 2.5 CA) - Lex Wow, you re the best. How can I thank you? Consider making a small donation to Head & Hands / À Deux Mains. Learn more about their important work below and, if you re between the age of 12-25, you should know that you can also access all services at Head & Hands yourself! You can make a simple, one-time donation of $5 or $10 right here. Depuis 1970, À deux mains / Head & Hands est voué au bien-être physique et mental des jeunes de Montréal. Aujourd hui, nous offrons une variété de services médicaux, sociaux et juridiques dont: De l information et des renvois Des cliniques médicales et de dépistage de VIH Le projet sens, un programme d éducation sexuelle De l assistance judiciaire, des accompagnements et des consultations d avocats Des consultations pour couples, familles et individus Le programme pour jeunes parents Le centre de jour pour jeunes Jeunesse 2000 Le travail de rue et programme d échange des seringues Le tutorat Notre garde-manger d urgence Notre approche est holistique, sans jugement et incorpore la réduction des méfaits. Since 1970, Head & Hands / À deux mains has been committed to the physical and mental health of our community s youth. Today, we offer a number of medical, social, and legal services including: Information and referrals Medical clinics and special HIV testing clinics The Sense Project sex education program Legal assistance, accompaniment, and lawyer consultations Social counselling with couples, families, and individuals The young parents program The Jeunesse 2000 youth drop-in centre Street work and needle exchange Tutoring Our emergency food pantry Our approach is harm-reductive, holistic, and non-judgmental.

2 FEDERALISM ANALYSIS Assessing the Validity of a Federal Law - Swinton explains that federalism analysis entails a three step inquiry: 1. delineation of the matter of the statute (pith and substance) 2. delineation of the scope of the competing classes 3 determination of the class into which the challenged statute falls 1. What is the law s pith and substance? In other words, make a statement about the dominant subject matter, central feature, or dominant purpose of the law. a) Consider the law in both its statutory and its political context - Look to both the preamble and extrinsic evidence (political and social context) to determine the law s primary function (the stated purpose should be supported/strengthened by the preamble, e.g. Anti-Inflation) - In the Reference re Employment Insurance Act, the court looks to the social nature of unemployment insurance to determine that Parliament should be able to adapt the plan to the new realities of the workplace - In the Supreme Court Reference, the court looks to legislative purpose and history to determine the meaning and scope of the law (which expands and changes over time - In the Persons Case, the JCPC looks forward, adopting a living tree approach to interpretation - Important to look to extrinsic evidence to determine the background, extent and purpose of the legislation (Morgentaler) b) Consider what its stated purpose is versus its actual purpose - Can you ensure that the law is not colourable? In other words, does it mean something more than, or different from what its words seem at first glance to say? (Lederman, Morgentaler, Reference Firearms Act) - In R v. Morgentaler, the actual purpose of the law is found to have diverged from the law s stated purpose, which led the court to base its analysis on the actual purpose instead. - In Westendorp, a bylaw which is said to be about regulating controlling crowded streets is really about controlling solicitation of prostitution - In contrast, in Walter v. AG Alberta (pre-charter era), the stated purpose of a law is accepted at face value (property and civil rights) rather than the clear actual purpose (punishment of a religious minority) - In Lacombe, the law appeared to regulate zoning but was actually found to be about the federal power of aerodrome regulation - Is there an attempt to frame this issue as a federal taxation power when its pith and substance is provincial? This is not allowed the federal government cannot use its taxation and spending power to trench on provincial areas (AG Canada v AG Ontario, Employment and Social Insurance) c) Consider the effects and outcomes of the law - What is the impact of this law in terms of policy and justice? We must consider the issue in terms of these non-logical grounds, and not just logic alone. Is this summary helpful? Make a small donation to Head & Hands.

3 2a. How can we classify that purpose federally? - Lederman s thesis is that a rule of law, for the purposes of the distribution of legislative powers, is to be classified by the feature that is judged its most important. a) Which specific federal powers within s. 91 are at stake? - Write a list of all the applicable enumerated powers. - It is possible that no enumerated heads of power will be appropriate, in which case look to the other broad sources of federal jurisdiction. It is worth mentioning if certain heads of power would allow partial validity of the law (e.g., the program or policy could be implemented in specific federal institutions) - In the Reference re Employment Insurance Act, the head of power of unemployment insurance in 91(2A) was interpreted broadly (with a living tree analysis) to include certain types of replacement income that would not have been included at the time the section was drafted (maternity and paternity benefits) - Consider the federal power of interprovincial works and undertakings, outlined in 92(10a) - In Friends of the Oldman River Society v. Canada (Min. of Transport), it was found that a project the Alberta government was running would affect federal works 91(10) of navigable waterways, fisheries, and further down Indian lands so federal government regulations about assessment did apply - Note that the treaty power is a federal executive prerogative power but that legislative implementation cannot be done unilaterally under s Rather, implementation must be consistent with the division of powers and have no effect until the relevant elements are adopted provincially (Labour Conventions case). Nevertheless, if international treaty or convention obligations are involved they are important to mention because it bolsters and reinforces other arguments (e.g., national concern, as it does in R v. Crown Zellerbach) b) Does this issue fall within the criminal law power in 91(27)? - Look to Morgentaler (abortion) to evaluate whether a province is attempting to recriminalize something that had been decriminalized by the federal government, or whether a province is attempting to otherwise encroach on a criminal matter (prostitution in Westendorp) - One of the important pieces of evidence in Morgentaler to that effect was that the language used in provincial abortion law was nearly identical to what had been in the criminal code, and there were clear fines and penal implications (purpose and form). i. Does its purpose meet the criminal power test? - The law must have a criminal law purpose, in one of the original categories set out in the Margarine Reference: (health, public peace, order and security, morality) - It might also meet the additional purpose in R. v. Hydro Quebec (protection of environment, which is linked to the idea that the purpose of the criminal law is to underline and protect our fundamental values, the environment being part of this). Note if an environmental issue doesn t meet the form test, look to emerging doctrine in national concern. - Note the tension between the criminal law test (which includes morality ) and the provincial use of this power (92(16)) to regulate morality. This is referred to as morality s double aspect in Nova Scotia Board of Censors v. McNeil. If a morality issue doesn't meet the form test, consider 92(16). - Purpose element of the criminal law power interpreted broadly in both Hydro Quebec and RJR Macdonald (linking the aspect of evil to protection of health, put bluntly, tobacco kills ) - A narrower interpretation in the Reference re Assisted Human Reproduction, where some elements that prohibited negative practices were upheld, but others were not deemed valid criminal law ii. Does its form meet the criminal power test? - The law cannot be merely regulatory, it must have a criminal form (Margarine reference). In other words, it

4 must have an element of prohibition, backed by penalty (otherwise it would wall within civil rights and property, or local and private: licensing, regulatory, preventative) - The court is lenient about the form test in RJR Macdonald v. Canada, but it does involve a prohibition - In R. v. Hydro Quebec also the court gives a broad/lenient interpretation to what constitutes a criminal law form, rejecting the idea that the environmental control legislation was a regulatory scheme and instead that it carefully targeted dangerous and toxic substances. - In Nova Scotia Board of Censors v McNeil, even though the censorship laws had a moral dimension to it, the laws did not have any prohibition or penalty required in a criminal law, it was a purely regulatory penalty (purpose and form). - In Rio Hotel v New Brunswick, laws about nudity in bars were found to overlap with federal criminal law powers to some extent but were really about regulating liquor sales and had no penal sanctions - Another broad interpretation of form in Reference re Firearms Act, which met the public safety purpose, and that licensing and registration of guns is not purely regulatory and focused on prohibitory elements, and also notes that this is different from other regulatory frameworks as guns are inherently dangerous. - A narrower interpretation in the Reference re Assisted Human Reproduction, suggests a retreat from the historically broad approach (where some provisions were held out as valid, but more regulatory elements were not). This is an indication that the court may find some sections valid and others not. - Conversely, provincial laws that have prohibitions and penalties are not necessarily infringing on criminal law powers (provinces have the ability to impose punishment for violation of provincial laws in 92(15)) c) Does this issue fall within one of the prongs of peace, order & good government? - Monahan outlines three prongs of POGG: emergency, national concern, and purely residual. i. Does it fall within the scope of the emergency power? - Laskin s four requirements for valid emergency law in the Reference re Anti-Inflation Act: 1. Form aspects: is the law temporary or permanent? (emergencies are short-term) 2. Preamble: can be used to assess the gravity of the circumstances which called forth the legislation and strengthen any assertion of crisis conditions 3. Extrinsic evidence: does Parliament have a rational basis for believing that there is an emergency? Note that the Court need not conclude that there actually was an emergency but only that Parliament had a rational basis for concluding that an emergency situation existed 4. Links to enumerated heads of power: does it have a foothold somewhere in s. 91? - Note that the Emergencies Act gives a definition of an emergency so laws relying on this power should consider the Act (and governments should declare a national emergency) - There was debate about whether inflation constituted an emergency in the Reference re Anti-Inflation Act, which highlights the fact that determination of an emergency may not fit with traditional conceptions - Recognized that prevention of emergency is also a valid element of emergency power in Canada Temperance Federation (to legislate for prevention appears to be on the same basis as legislation for cure) ii. Does it fall within the scope of the national concern doctrine? - In R v. Crown Zellerbach, the court sets out the test for an issue of national concern: 1. It is not the emergency doctrine (providing a constitutional basis for necessary, temporary legislation) 2. It applies both to new matters (not existing at confederation), and matters which previously have been of a merely local or private nature but have now become matters of a national concern (think about this

5 creatively: what elements of the law, the approach to the problem, or the tools involved are new?) 3. Singleness, distinctiveness, and indivisibility (it is specific, does not encroach on provincial powers in a way that is fundamentally at odds with distribution of power under Canadian federalism) 4. Provincial inability: Is a significant aspect of the problem simply beyond provincial reach to solve? (e.g., crosses provincial borders) What would the impact be extra-provincially if a province failed to address the issue? The federal government is able to fill the gaps of incapacity or inaction with a (specific) measure. - More recent developments: while in R v Hydro Quebec, it was found that protection of the environment could be a criminal law power, there is still doctrinal uncertainty about whether the environment could also be regulated using the national concern doctrine as well. - In Friends of the Oldman River Society, the court states that environmental regulation is too diffuse (not distinctive enough) to meet national concern doctrine criteria (but you can easily imagine sub-elements of environmental regulation that might be able to fit under national concern) but they do still find substantial impact of environmental issues on federal government to allow overlapping powers d) Does this issue fall within either prong of the trade and commerce power in 91(2)? i. Does it fall within the general branch of Parliament s trade and commerce power? Does the impugned law fall under the general branch of Parliament s trade and commerce power under section 91(2)? (General Motors of Canada Ltd v City National Leasing) (a) Is the impugned legislation part of a general regulatory scheme? (b) Is the scheme monitored by the continuing oversight of a regulatory agency? (c) Is the legislation concerned with trade as a whole rather than with a particular industry? (d) Is it of a nature that the provinces jointly or severely would be constitutionally incapable of enacting? (e) Would the failure to include one or more provinces or localities in the legislative scheme jeopardize the successful operation of the scheme in other parts of the country? e.g., protecting economic development nationally by creating a consistent privacy regime. Note that the regulation of general trade must be broad and sweeping, and cannot single out a particular trade or industry (Labatt Breweries v. Canada). ii. Does it fall within the interprovincial and international trade branch of Parliament s power? Does the impugned law fall under the interprovincial and international trade branch of Parliament s trade and commerce power under section 91(2)? (Murphy v CPR; The Queen v Klassen (MBCA). Justifiable if the impugned enactment is an integral part of a scheme for the regulation of international or interprovincial trade, a purpose that is clearly outside provincial jurisdiction and within the exclusive federal field of action. (Caloil) Note that provincial regulations that have an incidental effect on extraprovincial trade were valid (Carnation). 2b. How can we classify that purpose provincially? (or municipal bylaw) - Swinton notes that federalism analyses entail a three step inquiry: 1. delineation of the matter of the statute (pith and substance) 2. delineation of the scope of the competing classes 3 determination of the class into which the challenged statute falls a) Which specific provincial powers within s. 92 are at stake? - Write a list of all the applicable enumerated powers. - Note that the provinces use various powers to regulate morality: property and civil rights, administration of justice, imposition of punishment, local and private nature, etc.

6 - In Chaterjee v Ontario, which is about a provincial law allowing civil forfeiture, the law was found to have valid provincial objects, including deterring crime, seizing resources that may be used to fund future crime, funding costs associated with compensating victims, and so on so it is possible that the province can regulate and touch on some criminal-seeming issues b) Does this issue fall within the category of property and civil rights? 92(13) - Historically a very broad reading of this category through the JCPC - In Toronto Electric Commissioners v. Snider, the JCPC narrowly interprets trade and commerce and the criminal law power while it broadly interprets property and civil rights, and they do the same thing in AG Canada v AG Ontario (Employment and Social Insurance) (criticized by Kennedy, Macdonald, Smith, etc.) - Note the historical jurisprudence and constitutional practice of according provinces jurisdiction over intraprovincial commercial transactions (i.e. Snider), despite federal powers for interprovincial works listed in 92(10), when commercial matters are involved it typically belongs in the category of property and civil rights (92(13) - Broadly interpreted to allow provincial capacity to police morality: in Nova Scotia Board of Censors v. McNeil, the court determines that in pith and substance, the province s film censorship laws are about regulating business (property and civil rights) not criminal law power. - In Westendorp v. the Queen, there was an attempt to frame the anti-prostitution law as an issue of property and civil rights, but the law was deemed to be colourable and actually an attempt to criminalize activities and trench on the federal government s criminal law powers - In Rio Hotel v New Brunswick, the provincial law that restricted the amount of nudity in bars was constitutionally valid under property and civil rights" as a matter of regulating business (despite overlapping with applicable federal laws). This is in contrast with Westendorp, which was colourable: this law said exactly what it did, and was framed as a way of regulating liquor sales c) Does this issue fall within matters of a merely local and private nature? 92(16) - See if there are any justifications for the legislation as merely local and private. - The second ground upon which the provincial censorship law was upheld in Nova Scotia Board of Censors v. McNeil was local and private nature where the court says that in a country as vast and diverse as Canada, where tastes and standards may vary from one area to another, the determination of what is and is not acceptable may fall under 92(16)

7 3. If valid on the basis of pith and substance, does the law have any incidental effects? Incidental effects are permissible provided that the law s dominant purpose (its pith and substance) fits within federal jurisdiction. Be clear to tease out what the core purpose of the law is (pith and substance) even if it has other elements. However, if a specific provision appears invalid on the basis of pith and substance, you may have to more on to step four and test for ancillary effects. 4. If invalid on basis of pith and substance, can provision be otherwise justified? - It is important to distinguish between the pith and substance of the Act as a whole versus the pith and substance of particular subsections in cases where there appears to be an encroachment on the other level of government - In the case that a provision is found to be unconstitutional on the grounds that its pith and substance require it to fall into the jurisdiction of the other level of government, the provision may be saved on the basis of the ancillary effects doctrine (necessarily incidental). A provision that intrudes on the other level of government s jurisdiction is intra vires if it is a necessary part of a larger piece of legislation that is in pith and substance intra vires. - The question to asked is: is the impugned provision sufficiently integrated within the federal statute to sustain its constitutionality? The test is outlined in General Motors v City National Leasing: 1. Extent of the intrusion: When evaluating whether there is an issue of ancillary effects, imagine whether one level of government will argue whether an element/provision within a law will be seen as going too far or intruding into their area of jurisdiction. 2. Validity of the legislation as a whole: if the legislation is valid in pith and substance, and only one provision is being questioned, that provision may be an ancillary effect and therefore accepted 3. Connection: there is a sliding scale test based on the degree of intrusion. If the extent of the intrusion is very serious, it must be strictly, truly necessary. If the extent of the intrusion is not as serious, it must only be functionally connected to the general objective. (echoed in Lacombe) - In GM, the result was yes, it was necessarily incidental: the provision was a small but necessary part of a larger piece of legislation. - Note that provincial regulations that have an incidental effect on extraprovincial trade were valid (Carnation). - In Quebec (Attorney General) v. Lacombe, the court agreed that to meet the ancillary effects test, a prima facie invalid measure must complement rather than merely supplement the legislative scheme. It must, both rationally and in its function, further the purposes of the valid legislative scheme of which it is said to be part. By banning aerodromes throughout the whole municipality, it did not function as zoning legislation but instead as a stand alone prohibition. Assessing the Applicability of the Law -The doctrine of interjurisdictional immunity protects certain matters (deep cores of competency) that fall within federal (or provincial) jurisdiction from the impact or interference of otherwise valid provincial (or federal) laws. - In cases where this applies (where a law binds a person or institution otherwise normally regulated by the other level of government), the court will read down the statute so that it is understood to only apply to matters within the enacting body s jurisdiction. - The first step is to determine whether the law impedes on a protected core of provincial competency, and the second step is to determine whether the impairment on the federal law is sufficiently serious. (outlined in Canadian Western Bank v. The Queen in Right of Alberta) - In the Insite case (Canada (Attorney General) v. PHS Community Services Society) it was determined that decisions about what treatment may be offered in provincial health facilities do not constitute a protected core of the provincial power over health care and are not, therefore, immune from federal interference. - As the court notes in Canadian Western Bank v. The Queen in Right of Alberta, the doctrine of interjurisdictional immunity is falling out of favour given that a view of federalism that accepts interplay is more accepted. This is echoed in the Insite case: the doctrine of interjurisdictional immunity is narrow, and its premise of fixed watertight

8 cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism. - This is also reiterated in Charterjee v Ontario (AG), where the idea of proliferating jurisdictional enclaves was discouraged and both federal and provincial laws were found to be applicable - However, in Quebec (AG) v Canadian Owners and Pilots Association, it was found that the federal power to determine the location of airports and aerodromes was an essential and indivisible part of aeronautics and, as such, lies within the protected core of the federal aeronautics power. No provincial power could regulate in parallel. Assessing the Operability of the Law Are both levels of government legislating on a similar matter? - The double aspects doctrine allows for more than one level of government to legislate on a similar matter. - Both Swinton, Lederman, Ryder emphasize the reality of overlap and complexity. There are no watertight compartments (Lord Atkin) and absolute exclusivity is impossible. - In Multiple Access v McCutcheon, the court relied heavily on the double aspects doctrine. It says that while federal legislation may appear redundant in the case of an overlap with one province s law, other provinces may be silent on the issue and the federal law is serving an important purpose and filling a gap. - Dickson quoted in Multiple Access: the double aspects doctrine is applicable where the contrast between the relative importance of the two features is not so sharp: When, as here, the federal and provincial characteristics are roughly equal in importance, there would seem little reason, when considering validity, to kill of and let the other live. - Concurrent matters or fields have been recognized in many areas: highways, temperance, insolvency, etc. - In Rio Hotel v New Brunswick, a provincial law regulating nudity in businesses was found to be valid alongside existing federal criminal law, hence the double aspects doctrine applied. Is there a conflict between valid federal law and valid provincial law? - In the case where a valid federal law and a valid provincial law both apply to the same facts, the rule of federal paramountcy doctrine applies (the provincial rule is deemed inoperable). - Determining whether a conflict actually exists depends on whether the court takes a narrow or broad approach (the test is outlined in Rothmans and Western Bank): i. Narrow: Is there express conflict or an impossibility of dual compliance? Both laws may operate unless it would be impossible for those subject to (or responsible for implementing) the two different legislative regimes to comply with both. This is the older approach in Multiple Access (finds with securities legislation that mere duplication is not a conflict, in fact, quoting Lederman it is the ultimate in harmony ) and in Ross (where provincial law expanded federal motor vehicle law in the same direction, where the federal power was criminal and the provincial power was regulatory and both were fine). ii. Broad: Negative implications: is there a frustration of legislative purpose? ( Covering the Field ): Parliament, by legislating, has enacted a code that was intended to be complete. Is there an incompatibility of legislative intentions or objectives by the conflicting provincial law? - This is the more modern tendency in Bank of Montreal v Hall (the provincial notice requirements frustrate the federally granted right to the bank of immediate seizure) - This tendency is also reproduced in Benson & Hedges v Saskatchewan (the test applied is a broad one, but does not find a frustration of legislative purpose between the provincial and federal rules regarding display of tobacco products) as well as in Quebec (Attorney General) v. Lacombe (aerodromes) - However, a fairly modern case (Rothmans v Saskatchewan) the tobacco company did try to make the covering the field argument alone (without the frustration of purposes argument) and failed: the court accepted concurrency of provincial and federal laws on tobacco advertising

9 What about indigenous jurisdiction? - Macklem points to the fact that both the Delgamuuk and Pamajewon cases asserted a certain right to aboriginal self-government over lands to which the community holds aboriginal title. This potentially creates a third layer of conflict for the purposes of operability and overlap. One interpretation is a partial aboriginal paramountcy over certain kinds of issues related to land and self-governance. - According to s. 88 of the Indian Act, provinces are allowed to make laws which apply equally to those with Indian status, but when those laws are inconsistent with the Act, the FN Fiscal Management Act, or other band regulations they are not applicable. - Typically, federalism problems are about both levels of government fighting for greater control, but in the case of indigenous communities it is often both levels attempting to skirt their responsibilities. When there is a dispute over who has jurisdiction or obligations to an indigenous community, they pay first and resolve the dispute afterward. This is to ensure equality rights (s. 15) for indigenous peoples. A bonus test! Would allowing the law s validity upset the balance of powers? This is the underlying question in all federalism problems but is also almost a test unto itself: - The Secession Reference affirms federalism and a balance of legislative powers as an unwritten principle. - The Firearms Reference takes a novel doctrinal approach by explicitly considering whether using the criminal law power to allow the law s validity upsets the balance of power. - The third prong of the national concern test in R v. Zellerbach warns about this: the requirement for singleness/ distinctiveness/indivisibility is set out to ensure specificity, so that provincial powers are not encroached upon in a way that is fundamentally at odds with the distribution of power under Canadian federalism - Consider Simeon s key values of democracy, community, and functionalism/efficiency as mechanisms to determine the appropriate level of government in a federalism problem Is this summary helpful? Make a small donation to Head & Hands.

10 CHARTER ANALYSIS B. Do the claimants have standing? Does the plaintiff have private interest standing? Individuals: any individual whose Charter rights have been violated has standing to raise the Charter issue and seek a remedy under either s. 24 or s. 52(1). Corporations: freedom of speech has been interpreted as an area where corporations can have rights (e.g. Irwin Toy), but freedom of religion is not available to them. Equality rights, which apply to every individual do not apply to corporations, nor do section 23 rights (which apply to citizens ). This doesn t mean that corporations cannot sometimes engage in cases that touch on these issues, and section 52 remedies tend to allow a broader range of claims (e.g., see Big M) If not, does the plaintiff have public interest standing, taking into account the purposes of standing law? Test from Canada (AG) v DTES Sex Workers United Against Violence Society. 1. Does the case raise a serious justiciable issue? There is a need to respond to the concern about the need to carefully allocate scarce judicial resources and is in part based on the well-known floodgates argument. (DTES) Does the party bringing the action have a real stake or a genuine interest in its outcome? The second underlying purpose of limiting standing relates to the need for courts to have the benefit of contending points of view of the persons most directly affected by the issue. (DTES) Is the proposed suit a reasonable and effective means to bring the case to court? The third concern relates to the proper role of the courts and their constitutional relationship to the other branches of government. (DTES)

11 C. Does the Charter apply? (Section 32) 32. (1) This 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 of all matters within the authority of the legislature of each province. Is the claim being brought directly against a government actor? If so, the Charter applies. If not, the Charter does not apply (RWDSU Local 580 v Dolphin Delivery). The Charter may also apply to inaction (Vriend v Alberta, Dunmore v Ontario). Specifically, the deliberate choice not to legislate can be considered action. The Court said that there is a positive obligation to respect the Charter both through the government s actions, and inactions. In some cases the Charter confers positive obligations on government. For example, in the case of minority language rights see (Mahe v Alberta) and (Arsenault-Cameron v PEI); for freedom of association see (Dunmore v Ontario (AG)). If the claim is being brought directly against the state, there is no debate about Section 32 applicability. The Charter will ordinarily apply to all of a government entity s actions, and all provincial or federal laws. This includes Ministers, officials employed in government departments, police officers and other public agents that are subject to ministerial control or charged with government responsibilities. Notably, the Charter is not directly applicable to the courts (Hill v Church of Scientology). Is the claim being brought against an entity effectively controlled by government? Would the government have the power to directly control its operations if it wanted to? (McKinney) Look, for example, to governance bodies, decision making protocols, directness of state power (in McKinney they look to the university s board, principles of academic autonomy). The fact that something is (1) created by statute (2) carries out a public function and (3) is government funded may not be enough without direct control or management by the state. Examples of institutions where this might apply: Colleges: (Douglas/Kwantlen Faculty Association v Douglas College), (Lavigne v OPSEU) Public transportation authorities: (Greater Vancouver Transportation Authority v CFS-BC) Examples of institutions where this does not apply: Hospitals (Eldridge v British Columbia (AG)) Universities (McKinney v University Guelph) Examples of institutions where this is presently unclear: School boards, but see: (Simon Gillies v Toronto District School Board) Crown corporations Is the claim being brought against an institution exercising governmental functions? This applies in the case of municipalities (e.g., Godbout v Longueuil), which are governmental because: they are run by democratically elected and accountable councils they possess taxing power'' they are empowered to make laws, to administer them and to enforce them within a territory they derive authority from the provinces This also applies to: Territories (Charter, ss 30, 32) Professional bodies: Re Klein and Law Society of Upper Canada; Black v Law Society of Alberta

12 It is unclear that this would apply to aboriginal governments and band councils. Their rights arise from different sources, not necessarily from the authority of federal or provincial governments: inherent rights to self-government, treaty rights, band council authority under the Indian Act. If not, is the claim being brought against an institution undertaking (or failing to undertake) a governmental act? Is the institution implementing a government program? The Charter may still apply where the organization provided services that were in furtherance of a specific government policy or program. See for example hospitals when delivering publicly-funded medical services: Eldridge v BC (AG). In that case a direct connection was found between the government program of healthcare provision and the hospital s conduct. Is the institution exercising statutory powers of compulsion? See for example an adjudicator or tribunal when exercising power conferred by legislation: (Slaight Communications Inc v Davidson), or (Blencoe v British Columbia (Human Rights Commission) There is some lack of clarity regarding private security guards (R v Whatcott though here they justified actions using the Trespass Act) or in the case of university disciplinary action against students (Pridgen v University of Calgary). D. What is the actual statutory provision, regulation, or government action in question? Sometimes the government act is actually a cancellation of a program (e.g., PHS), done with some degree of ministerial discretion or on an arbitrary basis. Is this summary helpful? Make a small donation to Head & Hands.

13 Does the impugned action infringe upon the plaintiff s freedom of religion as guaranteed in Section 2(a)? 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; ( ) The test is set out in Amselem, Loyola, etc. Does the plaintiff have a practice or belief, having a nexus with religion which calls for a particular line of conduct? The practice or belief may be either objectively or subjectively obligatory or customary, or linked to the individual's spiritual faith, irrespective of whether it is part of official dogma or in conformity with the beliefs of religious officials. (Amselem) If so, is the plaintiff sincere in his or her belief? Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimants testimony, as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. (Amselem) If so, has the action interfered objectively and in a more than trivial or non-substantial manner with the exercise of the right so as to constitute an infringement upon the plaintiff s freedom of religion? This can either be purposive, or through its effects. For example, in Big M Drug Mart, there was an explicit legislative imposition of a religious provision through the Lord s Day Act. Similarly, in Mouvement laïque quebécois v Saguenay, the recitation of the prayer at the council s meetings was a use by the council of public powers to manifest and profess one religion to the exclusion of all others. (Recent SCC decision) The discrimination can also be indirect: for example, in Amselem a seemingly neutral rule made it impossible for individuals to practice their faith. This is even more explicit in Loyola where it is reiterated that the state cannot prevent individuals from fully participating in their religion ( right of free exercise ). This has to be substantial and non-trivial. This line of reasoning was argued in Loyola, but the Court found that interference was substantial based on evidence produced to the trial court: the fact that religious tenets were at the core of Loyola s teaching approach in all courses had a pronounced impact.

14 Does the impugned action infringe upon the plaintiff s freedom of expression as guaranteed in Section 2(b)? 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; ( ) The test is set out in Irwin Toy. Was the plaintiff's activity within the sphere of conduct protected by freedom of expression? An activity can be expressive if conveys or attempts to convey meaning provided it is not violence (Irwin Toy). It includes expressive acts, like union picketing (Dolphin Delivery). Threats of violence may be considered expressive (R v Keegstra). The freedom of expression guaranteed by s. 2 (b) of the Canadian Charter includes the freedom to express oneself in the language of one s choice. Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one s choice. Language is not merely a means or medium of expression; it colours the content and meaning of expression. It is a means by which a people may express its cultural identity. (Ford) If so, was either the purpose or effect of the government action or regulation to restrict expression? Purpose of regulation: i.e., is the law or regulation content-based ( you can t talk about birth control ), or viewpointbased ( you can t promote birth control )? (R v. Keegstra: legislation which specifically criminalizes hate speech) Where the law s purpose is to restrict protected expressive activity, the law will automatically violate s 2(b) (Irwin Toy). Effects that violate freedom of expression: i.e., does the law or regulation appear to have a neutral purpose but in fact limits speech? (e.g., no one shall hand out pamphlets on Parliament Hill to prevent littering ) (Montreal v , legislation limiting street noise) Where the law s effects are a restriction of protected expressive activity, the plaintiff must demonstrate that the restricted expression advances one of the core values underlying the guarantee (Irwin Toy). 1. seeking and attaining the truth 2. participation in social and political decision-making 3. self-actualization, individual self-fulfillment

15 Does the impugned action infringe upon the plaintiff s life, liberty, or security of the person as guaranteed in Section 7? 7. 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. See Carter, Canada (AG) v PHS Community Services Society, and Canada (AG) v Bedford for modern developments in the doctrinal test. Fundamental justice is more than a procedural right and goes beyond the enumerated examples from Sections 8 to 14. It also protects substantive rights (Motor Vehicles). Note its relationship to the constitutional principle of rule of law (Preamble, Secession, etc.) Does the impugned action interfere with life, liberty or security of the person? Life: Does the impugned action impose death or an increased risk of death on a person, either directly or indirectly? This right is normally only engaged by the threat of death (Chaoulli, PHS). In short, the case law suggests that the right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. (Carter, Rodriguez) Liberty: Does the impugned action interfere with the right to fundamental personal choices free from state interference? Liberty protects the right to make fundamental personal choices free from state interference (Blencoe v. BC HRC) Liberty is also invoked whenever the risk of imrisonment applies: for example, in PHS, the staff at Insite could be charged criminally and potential imprisonment for their work. Same with Motor Vehicles Act. In Morgentaler, Justice Wilson s analysis of the meaning of liberty included the right to make fundamental decisions about intimate dimensions of one s life. This may also be captured in security of the person (bodily autonomy). In some cases there may be less than an absolute prohibition, but a series of procedural constraints that restrict the freedom (e.g., the wait time for therapeutic abortion panels in Morgentaler) Security of the Person: Does the impugned action interfere with an individual's physical or psychological integrity, including by causing physical or serious and profound psychological suffering? Security of the person encompasses a notion of personal autonomy involving control over one s bodily integrity free from state interference. (Carter). It is engaged by state interference with an individual s physical or psychological integrity, including any state action that causes physical or serious psychological suffering (Carter) State inaction may also be found to cause serious state imposed psychological harm: for example, refusal to provide legal aid to parents who have had custody of their children suspended was found to violate security of the person in this way (New Brunswick v. G(J)) It consists of intimate rights to privacy of the body and its health and of the right protecting the psycho- logical integrity of an individual. This is engaged in Morgentaler (reproductive rights), Rodriguez and Carter (dying and death), PHS Insite (addiction and safe drug use) and Bedford (sex work). If so, is there a sufficient causal connection between the state-caused effect and the prejudice suffered by the plaintiff? A sufficient causal connection between the state-caused [effect] and the prejudice suffered by the [claimant] is required for s. 7 to be engaged (Blencoe, Bedford)

16 The court has adopted a flexible approach to this. In both Insite and Bedford is the government tries to argue that the deprivation of life, liberty, or security is as a result of the plaintiff s own fault ( you wouldn t suffer the harm if you weren t a drug user or sex worker in the first place ). This is rejected. If so, is the deprivation in accordance with the principles of fundamental justice? It is possible for a government act to violate life, liberty, or security of the person without violating fundamental justice. For example, in Rodriguez this is what the court found. What is the objective, purpose or state interest of the impugned action? In Carter the court warns about formulating this purpose too broadly. Sometimes there is more than one purpose, try to assess all of them. Recall that it is possible for an exercise of discretionary power granted by an otherwise constitutional law to be unconstitutional (for example, in PHS it was found that while the law was valid, the failure to grant an exemption for Insite was problematic. Arbitrariness: Is there a direct, rational connection between the purpose of the law and the impugned effect on the individual? Various formulations: Is the law necessary to achieve the objective; is it inconsistent with the interest or does it bear no relation to the interest? (see PHS, para 132) There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person. A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. (Bedford) This is connected to the idea of rule of law and vagueness (Nova Scotia Pharmaceutical, Secession). Overbreadth: Are the restrictions on the individual's life, liberty and security of the person more broadly framed than necessary to achieve legislative purpose? Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. (Bedford) The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object (Carter) Carter was decided on this basis: a blanket prohibition limited the rights of a specific class of people (the terminally ill, criteria in the case) in a way that violated their rights by forcing them to commit suicide at a time earlier than they would have for fear that they would be incapable of doing so later. Gross Disproportionality: Are the law's effects on the individual's life, liberty or security of the person so grossly disproportionate to its purposes as they cannot be rationally supported? Gross disproportionality describes state actions or legislative responses to a problem that are so extreme as to be disproportionate to any legitimate government interest. The Minister s decision to refuse an exemption was seen as grossly disproportionate in PHS, given that there was no discernably negative impact on the public safety as a result of Insite s work. The rule against gross disproportionality normally applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. Captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting. (Bedford) Parity: Is the punishment proportionate to the wrong? In Carter a new principle of fundamental justice was proposed (not adopted) which would require that offenders committing acts of comparable blameworthiness receive sanctions of like severity. They say the prohibition on assisted suicide violates this principle because employs the highest possible criminal sanction (homicide), while exempting other comparable end-of-life practices from criminal sanction.

17 Does the impugned action infringe upon the plaintiff s right to equality as guaranteed in Section 15? 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The test is set out in R. v. Kapp. See also cases like Whitler, Andrews, Law. Does the impugned action create a distinction based on an enumerated or an analogous ground, either through direct differential treatment or through adverse effects? Enumerated Grounds Race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Analogous Grounds An analogous ground is one based on a personal characteristic that is immutable or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law (Corbiere v Canada (Minister of Indian and Northern Affairs)) To determine whether a group can be distinguished on an analagous ground, the court should consider whether a group is part of a discrete and insular minority and whether there has been historical disadvantage and stereotyping. (Corbiere) The criteria of immutability is less and less important. Grounds including sexual orientation, marital status, receipt of child support payments, and citizenship have been recognized as analogous grounds of discrimination (Withler v Canada (AG)). Once a ground has been found analogous it is permanently so (Corbiere). What about family status (Thibaudeau, Shafer)? Should language be recognized or would that undermine the constitutional language rights scheme? (Lalonde) Poverty isn t, but should it be (Jackman, Falkiner, Boulter)? Grounds which are not analogous: employment status or occupation, province of residence, persons charged with war crimes outside of Canada, marijuana users. This approach has been critiqued for failing to recognize intersectional experiences of discrimination (for example, black men being discriminated against by landlords) and for erasing the victim s experience by creating new categories ( domestic workers ) rather than recognizing issues of intersectionality. Differential Treatment or Adverse Effects The court has emphasized that s. 15 of the Charter which sets out the guarantee for equality rights is a guarantee for substantive equality. (Andrews) In some cases the distinction will be made directly and explicitly on the basis of an enumerated or analogous ground. This will often occur in cases involving government benefits (e.g., Law, Lovelace, Hodge). In some cases a group will be intentionally omitted, a form of differential treatment (Vriend). In other cases, a purportedly neutral law has a disproportionately negative impact (adverse effects) on a group or individual that can be identified by factors relating to enumerated or analogous grounds (e.g., deaf patients Eldridge, female firefighter in BC v BCGSEU, Sheppard). Is the distinction saved by section 15(2)? Is the impugned action a law, program or activity?