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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.

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Schedule for Next 2 Weeks

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  1. 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.)

  2. Application of the Charter Introduction Do either of s. 32 or 52 assist? - Section 32(1) -- exhaustive? - Section 52 -- supreme law

  3. Application of the Charter • Introduction RWDSU Local 580 v. Dolphin Delivery Ltd. (1986) • Presentation: Mete, Rathi and Glenda

  4. 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?

  5. 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 (?)

  6. 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

  7. 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?

  8. 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”

  9. 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

  10. Application of the Charter 4. Application Exercise Italian Club Case

  11. Fundamental Freedoms -- s. 2 Freedom of Religion Freedom of Expression

  12. Charter – Section 2(a) • Introduction • Compare with application problems US: Establishment and Prohibition • Freedom to practise religion: non-compulsion • Freedom from religion: non-imposition

  13. 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

  14. 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

  15. 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

  16. Charter – Section 2(a) 3. Defining Freedom of Religion (con’t.) Multani v. Commission Scolaire Marguerite-Bourgeoys • Presentation: Steve, David

  17. Charter -- Section 2(b) Introduction 1. Theories and Concepts - long history of belief in the value of FOE

  18. 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

  19. 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

  20. Charter -- Section 2(b) 1. Theories and Concepts - extrinsic good in expression? • Ford and Irwin Toy: individual self-fulfillment and human flourishing

  21. Charter -- Section 2(b) 2. Jurisprudence -- elaboration on 3 rationales • 2. Political and Democratic Government

  22. Charter -- Section 2(b) 2. Jurisprudence -- elaboration on 3 rationales • 3. Self-Realization

  23. 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?

  24. Charter -- Section 2(b) Examples of expression? - “FIRE” in crowded theatre - skywriting - etc.

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