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Schedule for Tonight. Specific Charter Rights Fundamental Freedoms (s. 2(b) -- Expression Life, Liberty and Security of the Person (s. 7) ( Wynberg ) Legal Rights -- arrest, detention (s. 9) ( L.B .). Fundamental Freedoms -- s. 2. Freedom of Religion Freedom of Expression.

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schedule for tonight
Schedule for Tonight
  • Specific Charter Rights
    • Fundamental Freedoms (s. 2(b) -- Expression
    • Life, Liberty and Security of the Person (s. 7) (Wynberg)
    • Legal Rights -- arrest, detention (s. 9) (L.B.)
fundamental freedoms s 2
Fundamental Freedoms -- s. 2

Freedom of Religion

Freedom of Expression

charter section 2 b
Charter -- Section 2(b)

“Everyone has the following fundamental freedoms: …

(b) freedom of thought, belief, opinion and expression,including freedom of the press and other media of communication;…”

Introduction

  • Theories and Concepts

- long history of belief in the value of FOE

charter section 2 b1
Charter -- Section 2(b)

1. Theories and Concepts

- compare with U.S. 1st amendment: “Congress shall make no law…abridging the freedom of speech, or of the press;…”

charter section 2 b2
Charter -- Section 2(b)

1. Theories and Concepts

- 3 Primary Rationales:

1. Search for Truth/Marketplace of Ideas

2. Political process/Democratic Government

3. Self Realization/Actualization

charter section 2 b3
Charter -- Section 2(b)

3. Scope of Freedom of Expression--what does it include/exclude?

  • Dolphin Delivery
  • Keegstra
  • Ford
  • Broad interpretation, any expression short of actual violence, includes commercial expression, includes threats of violence
  • Irwin Toy
  • 2 Step Analysis
    • 1. Is activity a type of conduct protected? Look at form and content --Does it convey meaning?
    • 2. Does government action restrict expression, either in purpose or effect?
charter section 2 b4
Charter -- Section 2(b)

Examples of expression?

- “FIRE” in crowded theatre

- skywriting

- etc.

charter section 7
Charter -- Section 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.”

Wynberg v. The Queen [2006, Ont. C.A.]

- Presentation: Victoria Pezzo, Heather McMartin

charter section 71
Charter -- Section 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.”

Life:

Liberty:

- Economic Liberty?

- Blencoe

Security of the Person:

- Canadian Foundation for Children, Youth and Law v. Canada (AG) -- corporal punishment provisions in Criminal Code

- R. v. Morgentaler -- risk to women’s health due to abortion provisions of Criminal Code

charter section 72
Charter -- Section 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.”

“Fundamental Justice”

- R. v. Malmo-Levine [2003]

- For rule or principle to constitute principle of fundamental justice:

1. Rule must be a legal principle

2. Significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate.

3. Rule must be capable of being identified with sufficient precision to yield a manageable standard.

charter section 73
Charter -- Section 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.”

“Fundamental Justice”

- Chaoulli v. Quebec [2005]

- Arbitrary law

- “lacks a real connection on the facts to the purpose the law is said to serve”

charter section 9
Charter -- Section 9

“Everyone has the right not to be arbitrarily detained or imprisoned.”

The Queen v. L.B. [2007, Ont. C.A.]

- Presentation: Marlon Rhodan, Andrew Harper

charter section 91
Charter -- Section 9

“Everyone has the right not to be arbitrarily detained or imprisoned.”

The Queen v. L.B.

3 Situations for Detention:

1. Physical constraint;

2. Control over movement of person with significant legal consequences;

3. Submission or acquiesence without belief in a reasonable alternative -- “psychological detention”

charter section 92
Charter -- Section 9

“Everyone has the right not to be arbitrarily detained or imprisoned.”

Arbitrary

  • unfettered discretion
  • Capricious
  • May include unlawful arrest (ie, “unlawful” may not be “arbitrary”)
  • Detention for questioning on ‘reasonable grounds to detain’

Remedy

  • See s. 24(2) -- exclusion of evidence