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Schedule for Next 2 Weeks. Application of Charter (Dolphin Delivery) Specific Charter Rights Fundamental Freedoms (s. 2(a)) (Multani) Equality and Life, Liberty and Security of the Person (ss. 15, 7) (Wynberg) Legal Rights -- arrest, detention (s. 9) (L.B.). Application of the Charter.

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schedule for next 2 weeks
Schedule for Next 2 Weeks
  • Application of Charter
    • (Dolphin Delivery)
  • Specific Charter Rights
    • Fundamental Freedoms (s. 2(a)) (Multani)
    • Equality and Life, Liberty and Security of the Person (ss. 15, 7) (Wynberg)
    • Legal Rights -- arrest, detention (s. 9) (L.B.)
application of the charter
Application of the Charter

Introduction

Do either of s. 32 or 52 assist?

- Section 32(1) -- exhaustive?

- Section 52 -- supreme law

application of the charter1
Application of the Charter
  • Introduction

RWDSU Local 580 v. Dolphin Delivery Ltd. (1986)

  • Presentation: Mete, Rathi and Glenda
application of the charter2
Application of the Charter
  • Introduction

RWDSU Local 580 v. Dolphin Delivery Ltd. (1986)

  • Section 2(b) of Charter -- picketing a form of free expression
  • Does Charter apply here where judge-made rule -- common law - is in issue?
application of the charter3
Application of the Charter
  • Introduction

Dolphin Delivery Ltd. (cont.)

    • connection between the element of government action and the claim advanced
    • Charter does apply to delegated legislation, regulations, orders in council, municipal by-laws (?), by-laws of other creatures of legislatures (?)
application of the charter4
Application of the Charter
  • Introduction

Dolphin Delivery Ltd. (cont.)

Problems

    • Arguments centred on constitutional text
    • Arguments based on nature or function of Charter
    • Policy arguments
application of the charter5
Application of the Charter

2. Governmental Action

McKinney v. University of Guelph (1990)

  • Universities have large area of delegated power
  • 2 Stage test for determining governmental action:
    • 1. Is it act of government? Is an entity itself “government” for purposes of s. 32 of the Charter? If yes, Charter applies.
    • 2. If no, is the particular activity subject to “government control” that is effectively an act of government?
application of the charter6
Application of the Charter

2. Governmental Action

Eldridge v. BC (AG) (1997)

- health care policy re sign language interpreters

- Charter applies: hospital implementing “specific government policy or program”

application of the charter7
Application of the Charter

3. Governmental Inaction

Vriend v. Alberta (1998)

  • Individual Rights Protection Act (Alberta) not including sexual orientation as ground of discrimination
  • Matters within authority of legislature, including areas where government may refuse to act.
  • Conclusion: Charter applies
application of the charter8
Application of the Charter

4. Application Exercise

Italian Club Case

fundamental freedoms s 2
Fundamental Freedoms -- s. 2

Freedom of Religion

Freedom of Expression

charter section 2 a
Charter – Section 2(a)
  • Introduction
    • Compare with application problems

US: Establishment and Prohibition

    • Freedom to practise religion: non-compulsion
    • Freedom from religion: non-imposition
charter section 2 a1
Charter – Section 2(a)

2. Sunday Shopping

  • R. v. Big M Drug Mart (1985)
    • Purpose and effect of Lord’s Day Act
      • Does the purpose of the Act offend s. 2(a)?
      • If not, do the effects?
    • Not saved by section 1
charter section 2 a2
Charter – Section 2(a)

2. Sunday Shopping

  • Edwards Books and Art v. R (1986)
    • Retail Business Holidays Act offends s. 2(a) because of differential effects
    • Sunday shopping as economic advantage
charter section 2 a3
Charter – Section 2(a)

3. Defining Freedom of Religion

  • Syndicat Northcrest v. Amselem (2004)
    • Co-op housing -- balconies used for Succot festival
    • Declaration of co-ownership (K agreement) prohibit succahs
    • 2 Part Test:
      • 1. Individual shows that he or she has a practice or belief, having a nexus with religion, which calls for particular line of conduct; and
      • 2. Sincerity in that belief
charter section 2 a4
Charter – Section 2(a)

3. Defining Freedom of Religion (con’t.)

Multani v. Commission Scolaire Marguerite-Bourgeoys

  • Presentation: Steve, David
charter section 2 b
Charter -- Section 2(b)

Introduction

1. Theories and Concepts

- long history of belief in the value of FOE

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

1. Theories and Concepts

- s. 2(b): “Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”

- compare with U.S. 1st amendment

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)

1. Theories and Concepts

- extrinsic good in expression?

  • Ford and Irwin Toy: individual self-fulfillment and human flourishing
charter section 2 b4
Charter -- Section 2(b)

2. Jurisprudence -- elaboration on 3 rationales

  • 2. Political and Democratic Government
charter section 2 b5
Charter -- Section 2(b)

2. Jurisprudence -- elaboration on 3 rationales

  • 3. Self-Realization
charter section 2 b6
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 b7
Charter -- Section 2(b)

Examples of expression?

- “FIRE” in crowded theatre

- skywriting

- etc.