Application of Charter –(Dolphin Delivery) Specific Charter Rights –Fundamental Freedoms (s. 2(a)) (Multani) –Equality and Life, Liberty and Security of.

• 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.)

Schedule for Next 2 Weeks

Application of the Charter

Introduction

Do either of s. 32 or 52 assist?

- Section 32(1) -- exhaustive?

- Section 52 -- supreme law

Application of the Charter

1. Introduction

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

• Presentation: Mete, Rathi and Glenda

Application of the Charter

1. 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 Charter

1. 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 Charter

1. Introduction

Dolphin Delivery Ltd. (cont.)

Problems• Arguments centred on constitutional text• Arguments based on nature or function of Charter• Policy arguments

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 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 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 Charter

4. Application ExerciseItalian Club Case

Fundamental Freedoms -- s. 2

Freedom of Religion

Freedom of Expression

Charter – Section 2(a)

1. Introduction- Compare with application problems

US: Establishment and Prohibition

- Freedom to practise religion: non-compulsion- Freedom from religion: non-imposition

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(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(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(a)

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

Multani v. Commission Scolaire Marguerite-Bourgeoys

- Presentation: Steve, David

Charter -- Section 2(b)

Introduction

1. Theories and Concepts- long history of belief in the value of FOE

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(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(b)

1. Theories and Concepts- extrinsic good in expression?

• Ford and Irwin Toy: individual self-fulfillment and human flourishing

Charter -- Section 2(b)

2. Jurisprudence -- elaboration on 3 rationales

• 2. Political and Democratic Government

Charter -- Section 2(b)

2. Jurisprudence -- elaboration on 3 rationales

• 3. Self-Realization

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(b)

Examples of expression?- “FIRE” in crowded theatre- skywriting- etc.