Specific Charter Rights

1
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.)

2
Fundamental Freedoms -- s. 2

• Freedom of Religion
• Freedom of Expression

3
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

4
Charter -- Section 2(b)

• 1. Theories and Concepts
• - compare with U.S. 1st amendment Congress
  shall make no lawabridging the freedom of
  speech, or of the press

5
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

6
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?

7
Charter -- Section 2(b)

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

8
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

9
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 womens health
  due to abortion provisions of Criminal Code

10
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.

11
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

12
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

13
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

14
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