1. 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

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 1.Introduction RWDSU Local 580 v. Dolphin Delivery Ltd. (1986) Presentation: Mete, Rathi and Glenda

4. 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?

5. 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 (?)

6. 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

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) 1.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. 1 st 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.