Lecture 2W: Basic Framework, Interpretation and Application of the Charter

Question 1

What is the 2 step process of interpreting the Charter?

Answer 1

1) the courts interpret the meaning of the right or freedom at issue to determine whether the matter complained constitutes an infringement. 2) whether the limits are justified under s.1 of the Charter as reasonable limits prescribed by law in a free and democratic society.

Question 2

Who has the burden of proving the Charter is to be interpreted in a certain way?

Answer 2

The party seeking to uphold the Charter limitation

Question 3

What was the significance of Hunter v Southam?

Answer 3

the SC first applied the ‘purposive approach’ to Charter interpretation

Question 4

According to CJ Dickson, a Constitution is… which makes it distinguishable from ordinary statutes

Answer 4

A Constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of gov’t power… It must therefore be capable of growth and development over time to meet new social, political and historical realities often unimagined by the framers

Question 5

___ Is the standard approach for Constitutional inteprepation

Answer 5

A Purposive approach

Question 6

in R v Big M Drug Mart it was said that a ___ interpretation should be…

Answer 6

The [purposive] interpretation should be… a generous rather than legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection…

Question 7

What is a secondary approach to Constitutional interpretation?

Answer 7

the contextual approach – this approach will often be used to impose definitional limits on Charter rights and when a court assess whether a limit on a Charter right is reasonable under s.1. This approach generally looks into the larger social and political context to determine whether a limitation on a Charter right is justified and reasonable under s.1.

Question 8

In order of priority, what are the sources of Charter interpretation?

Answer 8

1. The text of the Charter itself,
2. Parliamentary debate
3. International law, is considered persuasive but not binding

Question 9

What are the 2 requirements of Sec1?

Answer 9

1) the requirement that all limits on rights be ‘prescribed by law,’ and 2) the requirement that limits be ‘reasonable’ and ‘demonstrably justified in a free and democratic society’.

Question 10

What are the two requirements for the “prescribed by law” requirement of sec1?

Answer 10

1) is the limit on the right authorized by a ‘law’? and 2) does the law have the required degree of precision?

Question 11

What was the significance of Greater Vancouver Transportation Authority v Canadian Federation of Students?

Answer 11

Detailed that the perscrbed by law requirement was meant to protect the public against arbitrary state action.

Question 12

What was the significance of the Oakes test?

Answer 12

established the basic framework for the analysis on how limitation on rights (under s.1) are to be justified through the purposive approach

Question 13

What are the steps of the Oakes Test?

Answer 13

In addition to the ‘prescribed by law’ requirement, there are four steps to the s. 1 analysis.
The objective of the measure must be important enough to warrant overriding a Charter right.
There must be a rational connection between the limit on the Charter right and the legislative objective.
The limit should impair the Charter right as little as possible.
There should be an overall balance or proportionality between the benefits of the limit and its deleterious effects.

Question 14

True or false: A private business serving food in normal circumstances can run afoul of Charter protections.

Answer 14

False. The Charter only governs government action, or, enterprises operating on behalf of the government

Question 15

What was the significance of McKinney v University of Guelph?

Answer 15

In this the issue raised was whether the Charter applied to universities and whether universities could be considered as gov’t actors under s.32. A majority found that they were not and so their adoption of mandatory retirement policies did not amount to gov’t action.

Question 16

What are the 3 tests used to determine if an organization is subject to Charter protections?

Answer 16

1) the ‘control’ test, which asks whether the legislative, executive, or administrative branch of gov’t exercises general control over the entity in question;
2) the ‘government function’ test, which asks whether the entity performs a traditional gov’t function;
3) the ‘statutory authority and public interest’ test, which asks whether the entity is one that acts pursuant to statutory authority specifically granted to it to enable it to further an objective that gov’t seeks to promote in the public interest.