LAW 2502 Full Study Notes PDF

WEEK 2: APPLICATION OF THE CHARTER file:///C:/Users/gtroz/Downloads/Application%20of%20the%20Charter.pdf Definitions: How are Charter rights protected? ○ Positive Rights: Requires the government to act in certain ways and rights are violated when the government fails to tak...

WEEK 2: APPLICATION OF THE CHARTER file:///C:/Users/gtroz/Downloads/Application%20of%20the%20Charter.pdf Definitions: How are Charter rights protected? ○ Positive Rights: Requires the government to act in certain ways and rights are violated when the government fails to take the action that they were supposed to take. ○ Negative Rights: Requires the government to refrain from acting in certain ways and rights are violated when the government takes action that interferes with the rights. The charter is part of the Canadian constitution. ○ Constitutional Supremacy: Subsection 52(1) of the Constitution Act 1982 says that any law that is inconsistent with the provisions of the constitution is of no force or effect. ○ Can be amended only by using the amending formula (house of commons, senate and 7 provinces that approve representing at least 50% of the population of all provinces combined. Cases: CASE 1. Douglas/kwantlen Faculty Assn. v. Douglas College Highlighted the government's significant control over the college, categorizing its actions as governmental due to its appointed board and the government's ability to direct its operations. Key Points: Government Control: The court emphasized that Douglas College operates as part of the government apparatus due to its significant governmental control. The government appoints and can remove the college board at its pleasure, and it retains the authority to direct the college's operations through law. ​ Acts of Government: The court held that the actions of Douglas College, including its dealings with its employees, constitute acts of government. This perspective is pivotal in determining the extent of legal obligations and constitutional protections applicable to the college's actions. ​ Distinct Status: Douglas College's status differs markedly from that of universities like the University of Guelph and the University of British Columbia. While these universities receive government regulation and funding, they are considered essentially autonomous bodies. This distinction underscores the unique legal framework within which Douglas College operates. Implications:  Governmental Accountability: The ruling suggests that Douglas College, as an entity closely intertwined with government operations, must adhere to governmental standards of accountability and legality in its actions. Employee Rights: Employees of Douglas College may be subject to governmental regulations and protections akin to those applicable to public sector workers, given the court's characterization of the college's actions as governmental in nature. Relevance: Understanding the nature of Douglas College's relationship with the government is crucial for determining the extent of legal oversight, accountability, and constitutional protections applicable to its operations and dealings with employees. CASE 2. Eldridge v. British Columbia (Attorney General) Emphasized the government's responsibility in ensuring equal access to healthcare services for individuals with disabilities, such as providing sign language interpretation. Key Points: Plaintiffs' Circumstances: Robin Eldridge and John and Linda Warren, who are deaf and communicate through sign language, were unable to access medical interpretation services provided by the provincial government. ​ Lack of Access: The absence of sign language interpreters hindered effective communication between the plaintiffs and their healthcare providers, posing risks of misdiagnosis and inadequate treatment. ​ Charter Rights Violation Claim: The plaintiffs sought a declaration that the failure to offer sign language interpreters as an insured benefit violated their rights under the Charter of Rights and Freedoms. Court's Rulings: Charter Application: The court clarified that private corporations, though created by statute and serving government purposes, do not fall under the direct jurisdiction of the Charter. While the legislation governing corporations is subject to the Charter, the corporations themselves are not considered part of the government for Charter purposes. Government Policy Connection: In this case, the court found a direct and precisely defined connection between a specific government policy and the hospital's actions. The failure to provide sign language interpretation services was intimately linked to the medical service delivery system outlined in legislation. Hospitals, although autonomous in day-to-day operations, act as agents for the government when providing specified medical services mandated by law. Government Objective: The court emphasized that the Hospital Insurance Act aimed to achieve a specific governmental objective by ensuring the provision of medically necessary services. Consequently, hospitals, while  autonomous entities, are instrumental in fulfilling the government's broader social program objectives through healthcare delivery. Implications: Access to Healthcare Services: The ruling underscores the importance of ensuring equal access to healthcare services for individuals with disabilities, such as the provision of sign language interpretation services, to prevent discrimination and uphold Charter rights. Role of Hospitals: Hospitals, while autonomous in management, are agents of the government when delivering specific medical services outlined in legislation, highlighting their accountability in adhering to government policies and objectives. Relevance: Understanding the court's interpretation of the relationship between government policy, hospital autonomy, and Charter rights is crucial for analyzing cases involving healthcare accessibility and discrimination against individuals with disabilities. CASE 3: Vriend v. Alberta Affirmed the application of the Charter to legislation targeting private activity, ensuring protection against discrimination based on sexual orientation. Key Points: ​ Plaintiff's Background: Delwin Vriend, employed as a laboratory coordinator in Edmonton, Alberta, disclosed his homosexuality during his employment tenure. Despite positive performance evaluations, he faced adverse actions from his employer after the college's board adopted a position statement on homosexuality. ​ Discrimination Allegation: Vriend sought to lodge a complaint with the Alberta Human Rights Commission (Commission) against his employer for discrimination based on sexual orientation. However, the Commission informed him that the Individual's Rights Protection Act (IRPA) did not cover sexual orientation discrimination. Court's Rulings: Charter Application: The Supreme Court rejected Alberta's argument that applying the Charter to the case would excessively regulate private activity. It clarified that while the IRPA targeted private activity, its alignment with the Charter did not imply undue interference. Legislation regulating private activity should still be subject to Charter scrutiny to prevent immunity from constitutional oversight. Implications: Protection of Rights: The ruling highlights the importance of extending Charter protections to legislative frameworks aimed at regulating private activity, such as the IRPA. This ensures that individuals are safeguarded against discrimination and rights violations even in private settings.  Charter Scrutiny: The decision underscores the obligation of courts to subject legislation that regulates private conduct to Charter scrutiny, preventing potential gaps in constitutional protection and upholding fundamental rights and freedoms. Relevance: Understanding the court's stance on the application of the Charter to legislation targeting private activity is crucial for analyzing cases involving discrimination and rights violations in various spheres of private life, including employment and other interpersonal relationships. Other Shit: Evolution of Charter Jurisprudence: ○ Individuals can only be imprisoned based on reasonable and fair laws (BC Motor Vehicle Act) ○ Right to be secure against unreasonable search and seizure ○ Right to be presumed innocent until proven guilty (Oakes) ○ Women’s right to liberty and security (Morgentaler) Discrimination based on sexual orientation (Vriend) ○ Equality rights for same-sex partners (M v. H) ○ Official language rights ○ Inmates’ right to vote (Sauvé) How are Charter rights limited? ○ Section 1 of the Charter: “1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” ○ The Oakes test – Government has burden to show the infringing measure: Is prescribed by law Pursues a pressing and substantial objective Is rationally connected to that objective (“rational connection”) Impairs the right no more than reasonably necessary to achieve the objective (“minimal impairment”) Has benefits that outweigh the negative effects on the right (“overall proportionality”) Who does the Charter apply to? ○ Section 32 of the charter. a)“to the Parliament and government of Canada in respect of all matters within the authority of Parliament...”  b) “to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.” ○ When and to whom does it apply to? Drawn from RWDSU v. Dolphin Delivery Ltd., (Dolphin Delivery) to both federal and provincial governmental actions to legislative, executive and administrative branches of government ○ E.g., Cabinet decisions and exercise of prerogative to the exercise of discretionary decision-making powers conferred by statute to the common law as it is the basis of governmental action that infringes a right or freedom (Hill) When does the Charter NOT apply? ○ Legislative assemblies when exercising their inherent privileges (New Brunswick Broadcasting Co. v. Nova Scotia) ○ most orders of the courts (Dolphin Delivery) ○ purely private action (Dolphin Delivery) ○ private institutions (McKinney; Harrison (e.g., universities); Stoffman (e.g., hospitals)) HOWEVER, it MAY apply to: Entities which are essentially governmental in nature ○ What are indicia of government? 1. the governing body is democratically elected and accountable to its constituents 2. the body exercises governmental functions (e.g. law making and enforcing) 3. whether the body exercises powers conferred on it by the provincial legislatures ○ Municipalities (Godbout) ○ Entities which by virtue of the extent and degree of government control may be properly characterized as “government” Factors considered: a) whether the board is appointed and removable by the government b) whether the government exercises regular control over the entity (directive powers; approval of by-laws, budgets) c) whether the entity was established to implement government policy ○ Douglas/kwantlen Faculty Assn. v. Douglas College  ○ Non-governmental entities which engage in governmental acts/activities Factors considered: a) whether the entity implements a specific statutory scheme or function b) whether the entity acts in furtherance of a specific government policy or program ○ Eldridge v. British Columbia (Attorney General) ○ Vriend v. Alberta WEEK 3: Fundamental Freedom - Religion file:///C:/Users/gtroz/Downloads/Fundamental%20Freedom_Religion.pdf Definitions: Purpose of Freedom of Religion: Freedom of religion has been defined as “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination” (Big M Mart) To prevent interference “with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being” (Edwards Books) Is linked to the Charter’s commitment to equality and the protection of minorities. Scope of Freedom of Religion: Religion typically involved (Amselem): ○ a particular and comprehensive system of faith and worship ○ the belief in a divine, superhuman or controlling power ○ freely and deeply held personal convictions connected to one’s spiritual faith, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith The Supreme Court of Canada has interpreted section 2(a) broadly. Protects even those religious practices that are harmful to the rights of others (Whatcott) Scope - Limitations  Could go beyond major, established religions, but is not without limits ○ Grizzly Bear Spirit (Ktunaxa) Competing rights or interests had to be reconciled ○ B. (R.) ○ Trinity Western University Cases: CASE 1: Big M Mart A pivotal legal decision in Canada, striking down Sunday shopping restrictions as unconstitutional due to their infringement on religious freedom. Key Points: ​ Background: Big M Drug Mart, a store in Calgary, faced charges for operating on Sundays, contrary to the Lord's Day Act, which mandated Sunday closure based on Christian tradition. ​ Discriminatory Impact: The court noted that the Act discriminated against non-Christian Canadians by imposing Christian religious values as law, affecting both believers and non-believers. ​ Violation of Charter: Enforcing Sunday closure based on religious grounds contradicted the preservation of Canada's multicultural heritage, as recognized in Section 27 of the Charter of Rights and Freedoms. Implications: Religious Neutrality: The ruling emphasized the importance of religious neutrality in Canadian law, prohibiting legislation that imposes religious practices or preferences on society as a whole. Charter Protections: Laws that infringe upon fundamental rights, such as freedom of religion and equality, may be struck down if they cannot withstand Charter scrutiny. Relevance: Understanding the Big M Mart case is essential for grasping the principles of religious freedom, equality, and Charter protections in Canadian law, particularly regarding the separation of religion and state and the accommodation of diverse cultural practices. CASE 2: Syndicat Northcrest v. Amselem (analytical framework in other shit) Established the importance of sincerity in religious belief and upheld the rights of individuals to practice their religion, specifically addressing the accommodation of Orthodox Jewish religious practices in a condominium setting Key Points: ​ Background: Orthodox Jewish individuals residing in a Montreal condominium complex sought to erect succahs (temporary huts) on their balconies to observe the religious festival of Succot, a biblically mandated obligation.  ​ Denial and Legal Action: The condominium management, Sanctuaire du Mont-Royal, refused their request, leading to legal action. Despite a proposed compromise of a communal succah, the individuals insisted on individual setups, prompting the management to seek an injunction against them. ​ Sincerity of Belief: The Supreme Court emphasized the sincerity of religious belief, focusing on honesty and good faith rather than external judgments. Expert testimony supported the sincerity of the appellants' beliefs, contributing to the positive assessment of their religious freedoms. Implications: Sincerity Assessment: Courts evaluate sincerity based on the honesty and consistency of belief, avoiding reliance on expert opinions or past practices. The focus is on the individual's subjective understanding of religious obligations. Freedom of Religion: Interference with an individual's religious practices must be justified and proportionate. In this case, the denial of the right to erect succahs constituted a significant infringement of religious freedom. Relevance: Amselem sets a precedent for protecting religious freedoms in private settings, emphasizing the importance of sincerity in religious belief and the need for accommodation when religious practices conflict with communal regulations. Understanding this case is crucial for analyzing conflicts between individual religious rights and communal regulations in diverse societies. CASE 3: Ktunaxa Nation v. British Columbia Navigated the clash between Indigenous cultural preservation and economic development, ultimately ruling against the Ktunaxa Nation's claim, emphasizing the limited scope of protection under the Charter for sacred sites and religious practices in the face of governmental objectives. Key Points: ​ Background: The Ktunaxa Nation argued against the approval of a ski resort in Qat’muk, a sacred area they believe to be the spiritual home of the Grizzly Bear Spirit, vital to their identity and culture. ​ Religious Beliefs: The Ktunaxa sincerely held beliefs in the existence and significance of the Grizzly Bear Spirit, asserting that permanent development in Qat’muk would drive the spirit away, causing profound harm to their culture. ​ Charter Claim: The Ktunaxa invoked Section 2(a) of the Charter, claiming that the approval of the ski resort violated their freedom of religion. Implications: Freedom of Religion Inquiry: The case required two inquiries: firstly, assessing the sincerity of the Ktunaxa's belief in the Grizzly Bear Spirit's existence and importance (which they passed, sincerely relieving in the existence and importance of the Grizzly Bear Spirit), and secondly, determining whether the government's decision interfered with their freedom to believe in or manifest that belief.  Nature of Claim: The Ktunaxa did not seek protection for their freedom to believe in the Grizzly Bear Spirit or practice related rituals. Instead, they sought to protect the presence of the Grizzly Bear Spirit itself and the subjective spiritual meaning derived from it. Relevance: Ktunaxa Nation v. British Columbia raises significant questions about the extent of protection for Indigenous spiritual beliefs under the Charter and the distinction between belief protection and the protection of spiritual entities. Understanding this case is crucial for analyzing conflicts between Indigenous rights, religious freedoms, and development projects on sacred lands. CASE 4: B.(R.) v. Children’s Aid Society of Metropolitan Toronto Addressed the conflict between parental rights and child welfare, siding with the state's intervention under the Child Welfare Act despite infringing on parental religious freedoms. Key Points: ​ Medical Treatment Conflict: S.B., a premature baby, faced a medical crisis requiring a blood transfusion, which her Jehovah's Witness parents objected to on religious grounds. ​ Legal Action: The Children's Aid Society sought a wardship order under the Ontario Child Welfare Act, depriving the parents of the right to refuse medical treatment for S.B. ​ Freedom of Religion vs. Child Protection: The court recognized the serious infringement on the parents' freedom to choose medical treatment for their child based on their religious beliefs. However, it also acknowledged the pressing and substantial objective of protecting children at risk. Implications: Legislative Scheme Justification: The court found that while the Act significantly limits parental rights, it does so to protect children in need of treatment when parents refuse consent. The legislative framework provides procedural protections and safeguards to ensure fairness and adequacy in decision-making. Balancing Rights: The case illustrates the delicate balance between parental rights, including religious freedoms, and the state's obligation to safeguard the welfare of children, particularly in life-threatening medical situations. Relevance: B. (R.) v. Children's Aid Society of Metropolitan Toronto provides insight into the legal considerations surrounding parental rights, religious freedoms, and child protection in medical treatment decisions. Understanding this case is essential for analyzing conflicts between individual rights and the state's duty to safeguard vulnerable individuals, particularly children, in healthcare settings. CASE 5: Alberta v. Hutterian Brethren of Wilson Colony Scrutinized the clash between religious beliefs and government regulations, ruling against the Hutterian Brethren's objection to driver's license photos, emphasizing the state's interest in maintaining security over religious freedoms. Key Points: New Regulation: In 2003, Alberta implemented a regulation mandating all motor vehicle drivers to possess a driver's license with a photograph. Religious Conflict: The Wilson Colony Hutterites objected to the regulation on religious grounds, as they believed having their photo taken violated the Second Commandment's prohibition against creating photographic representations. ​ Freedom of Religion Challenge: The Hutterian Brethren argued that the regulation infringed upon their freedom of religion, as it forced them to choose between adhering to their religious convictions and obtaining a driver's license. Implications: Freedom of Religion Consideration: The court acknowledged the sincerity of the Hutterian Brethren's religious beliefs but weighed them against the province's objective of maintaining the integrity of the driver's licensing system. Section 1 Justification: Despite meeting the criteria for infringement, the universal photo requirement was deemed rationally connected to the objective of enhancing security and minimizing identity theft associated with the licensing system. Relevance: Alberta v. Hutterian Brethren of Wilson Colony sheds light on the delicate balance between religious freedoms and societal objectives, particularly concerning regulations with potential religious implications. Understanding this case is crucial for analyzing the application of Section 1 justifications in limiting Charter rights, particularly in cases involving conflicts between religious beliefs and government policies aimed at security or public safety. CASE 6: Law Society of British Columbia v. Trinity Western University Scrutinized the clash between religious freedoms and LGBTQ+ rights in the context of accreditation for TWU's law school, ultimately ruling against TWU, prioritizing diversity and inclusion within the legal profession. Key Points: ​ Trinity Western University (TWU): A private Christian university in British Columbia required all students and faculty to adhere to a religious-based code of conduct, specifically a covenant allowing sexual intimacy only between a married man and woman. ​ Controversy over Law School: TWU's proposal to open a law school faced opposition from legal communities due to concerns regarding the code of conduct’s implications.  ​ Freedom of Religion Challenge: The Law Societies of British Columbia and Ontario chose not to accredit TWU's law school, citing concerns about the code of conduct’s impact on equality and diversity within the legal profession. Implications: Sincerity of Beliefs: The Supreme Court recognized the sincerity of TWU's evangelical community's beliefs in the spiritual benefits of studying in a religious environment governed by the code of conduct. Interference with Religious Practices: Despite acknowledging the interference with TWU's religious beliefs and practices, the court deemed the limitation on TWU's ability to operate a law school governed by the covenant as minor, as it did not prevent the existence of a Christian law school environment. Advancement of Statutory Objectives: The decision to deny accreditation aimed to promote equal access and diversity within the legal profession, preventing potential harm to LGBTQ individuals and upholding the public interest in merit-based admissions and inclusion. Relevance: The case highlights the tension between religious freedoms and the promotion of equality and diversity in professional settings. Understanding this case is essential for analyzing the legal considerations surrounding accreditation decisions and the balancing of competing rights and interests in education and the legal profession. Other Shit: Section 2 of the Charter: Everyone has the following fundamental freedoms: ○ a) freedom of conscience and religion; ○ b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; ○ c) freedom of peaceful assembly; and; ○ d) freedom of association.” Analytical Framework (Amselem): Does the claimant sincerely believe in a belief or practice that has a nexus with religion? (subjective inquiry) ○ Claimants must show they sincerely believe that a belief or practice is required by their religion. The belief must be asserted in good faith, and must not be capricious or an artifice ○ No need for evidence demonstrating the validity of the beliefs or that the claimant’s beliefs conform to official religious doctrine Does the challenged state measure interfere with the claimant’s ability to act in accordance with her religious beliefs, in a manner that is more than trivial or insubstantial? (objective inquiry)  ○ Claimants need to show some objective (not biased) evidence of state interference with the observance of their religious practice ○ “Trivial or insubstantial” interference is interference that does not threaten actual religious beliefs or conduct (Hutterian Brethren) WEEK 4: Fundamental Freedom - Expression file:///C:/Users/gtroz/Downloads/Fundamental%20Freedom_Expression.pdf Definitions: Charter Framework: The Charter guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Charter Framework - Oakes Test: Step 1 - The government that infringed the Charter right must explain the objective of its impugned law or conduct. The objective must be pressing and substantial. Step 2 - The government must demonstrate that the law or policy is rationally connected to the pressing and substantial objective. If the law or policy is arbitrary or serves no logical purpose, then it will not meet this standard. Step 3 - The government must demonstrate that the law or policy is minimally impairing the Charter right. This means that the law must impair the Charter right as little as possible or is “within a range of reasonably supportable alternatives.” Step 4 - The government must demonstrate that the beneficial effects of the law or policy are not outweighed by its negative effects on the Charter right in question. This is commonly known as the proportionality requirement. If the government fails at any of the steps, the infringement is not justified. The court will invalidate the law or policy on the ground that is inconsistent with the Charter. Freedom of Expression Analytical Framework: There is a three-part test (Irwin Toy): ○ Does the activity in question have expressive content?  ○ Does the method or location of the expression remove this prima facie protection? ○ Does the government action in question infringe the protected expression, either in purpose or effect? Even where the purpose is not to restrict expression, the effect of the law or government action may still infringe s. 2(b) if it is shown that the affected expression advances one of the three values underlying s. 2(b) Cases: CASE 1: Saskatchewan (Human Rights Commission) v. Whatcott Scrutinized the clash between freedom of religion and the prohibition of hate speech, ultimately upholding restrictions on extreme expression targeting sexual orientation under the Charter. Key Points: ​ Facts: Whatcott distributed flyers on behalf of a religious group containing comments about homosexuality, leading to complaints alleging promotion of hatred based on sexual orientation. ​ Legal Issue: The case centered on whether the flyers contravened s. 14 of the Saskatchewan Human Rights Code, prohibiting hate speech based on sexual orientation, and whether this violated Whatcott's Charter rights to freedom of religion and expression. ​ Ruling: The Supreme Court found that while Whatcott sincerely held religious beliefs, the extreme and graphic nature of his expression substantially interfered with his ability to disseminate his beliefs. However, the limitation imposed by s. 14(1)(b) was justified under s. 1 of the Charter. Implications: Freedom of Religion vs. Hate Speech: The case highlighted the tension between freedom of religion and the prohibition of hate speech, particularly regarding extreme expression targeting specific groups. Charter Analysis: The court conducted a Section 1 analysis, balancing Whatcott's freedom of religion against the societal interest in preventing hate speech and promoting equality and dignity for LGBTQ+ individuals. Relevance: Understanding Saskatchewan (Human Rights Commission) v. Whatcott is crucial for analyzing the intersection of freedom of religion, expression, and the prohibition of hate speech, as well as the application of the Charter's limitations clause in justifying restrictions on fundamental rights. CASE 2: Canadian Frontline Nurses v. Canada (Attorney General) Key Points:  Facts: Canadian Frontline Nurses organized a protest convoy in Ottawa in January 2022 to voice dissent against COVID-19 public health measures and vaccination requirements for cross-border truckers. Legal Issue: The case examined the legality of regulations that potentially criminalized attendance at protests, infringing on the right to freedom of expression for peaceful protestors not involved in disruptive actions. Ruling: The court determined that the scope of the regulations was overbroad, encompassing peaceful protestors who did not participate in disruptive activities. This overbreadth infringed on their freedom of expression, even if they were not involved in actions leading to breaches of peace. Implications: Freedom of Expression Infringement: The court's ruling highlighted the infringement on the freedom of expression for peaceful protestors due to the overbroad scope of the regulations. Balancing Rights: The case underscores the importance of balancing public safety measures with the protection of fundamental rights during protests, particularly the right to freedom of expression. Relevance: Understanding Canadian Frontline Nurses v. Canada (Attorney General) is essential for analyzing the limits of government regulations on protests and their impact on freedom of expression, particularly in the context of public health crises. CASE 3: Irwin Toy Ltd v. Quebec (Attorney General) Key Points: Facts: Irwin Toy Ltd. broadcasted advertisements violating the Québec Consumer Protection Act’s ban on children’s advertising, prompting a legal challenge asserting infringement of freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. Legal Arguments: The central legal issue revolved around whether the ban on children’s advertising constituted a violation of the freedom of expression guaranteed by section 2(b) of the Charter. Court's Analysis: The court recognized the legislative objective behind regulating commercial advertising directed at children as aligned with consumer protection goals, aiming to shield a vulnerable demographic from undue commercial influence. It underscored the rationale behind prohibiting advertisers from exploiting children's credulity, emphasizing their diminished capacity to critically assess persuasive advertising messages. Implications: The ruling highlights the government's authority to enact regulations aimed at safeguarding vulnerable populations, even if such measures curtail certain forms of expression.  It underscores the judiciary's role in balancing competing interests, emphasizing the importance of protecting vulnerable groups while respecting fundamental rights. Relevance: Understanding Irwin Toy Ltd. v. Quebec (Attorney General) is essential for exploring the constitutional dimensions of advertising regulations, particularly concerning commercial expression targeting children. It offers insights into how courts navigate the intersection of freedom of expression and consumer protection objectives in the context of advertising law. CASE 4: Ford v. Quebec (Attorney Genera;) Key Points: Facts: A group of Quebec retailers challenged certain provisions of the Québec Charter of the French Language, arguing that the requirement for public signs, commercial advertising, and firm names to be in French only violated the freedom of expression guaranteed by s. 2(b) of the Charter. Legal Issue: The case examined whether the requirement for French-only signage violated the freedom of expression under s. 2(b) of the Charter and whether it was necessary and proportionate to the legislative purpose of protecting the French language. Court's Analysis: The court acknowledged the importance of protecting the French language in Quebec society but found that the requirement for French-only signage was not necessary or proportionate to achieve this purpose. While there was a rational connection between protecting the language and ensuring Quebec's cultural identity, the restriction on non-French signage was deemed unnecessary and disproportionate. Implications: Balancing Language Rights: The case highlights the challenge of balancing language rights with other fundamental freedoms, such as freedom of expression, in a multicultural society like Canada. Government Regulation: It underscores the need for government regulations to be necessary, proportionate, and justifiable in achieving their intended objectives, particularly when they impinge on fundamental rights. Relevance: Understanding Ford v. Quebec (Attorney General) is crucial for analyzing the balance between language rights and freedom of expression, particularly in the context of linguistic legislation aimed at protecting cultural identity. CASE 5: R. v. Keegstra Key Points: Facts: James Keegstra, an Alberta schoolteacher, conveyed anti-Semitic statements to his students, leading to charges of willfully promoting hatred under s. 319(2) of the Criminal Code. He argued that this provision violated his right to freedom of expression.  Legal Issue: The case examined whether the provision in the Criminal Code, criminalizing hate speech, infringed upon the defendant's freedom of expression under s. 2(b) of the Charter. Court's Analysis: The Supreme Court ruled that expressions intended to promote hatred against identifiable groups did not fall within the scope of freedom of expression. Parliament's objective of preventing harm caused by hate propaganda justified overriding the constitutional freedom of expression. ○ Hate propaganda is not analogous to violence. ○ However, parliament’s objective of preventing harm caused by hate propaganda was significant enough to warrant overring constitutional freedom. Implications: Balancing Rights: The case illustrates the delicate balance between freedom of expression and the prevention of harm caused by hate propaganda, highlighting the need for restrictions on speech that incites hatred and discrimination. Protecting Targeted Groups: Parliament's objective of protecting members of targeted groups from the harm caused by hate propaganda is considered sufficiently important to warrant limitations on freedom of expression. Relevance: Understanding R. v. Keegstra is crucial for analyzing the legal framework surrounding hate speech laws in Canada and the balance between protecting individual freedoms and preventing harm to targeted groups in society. CASE 6: R. v. Zundel Key Points: Facts: Ernst Zundel published a pamphlet titled "Did Six Million Really Die?" questioning the Holocaust's occurrence and suggesting it was a myth created by Jewish people. He was charged and convicted under section 181 of the Criminal Code for spreading false news likely to cause injury or mischief to a public interest. Legal Issue: The case examined whether section 181 of the Criminal Code, which prohibits the willful publication of false news likely to cause harm to public interest, violated Zundel's freedom of expression under section 2(b) of the Charter. Court's Analysis: The Supreme Court ruled that all forms of communication, regardless of content, are protected under section 2(b) of the Charter, unless they take a physical form that excludes protection (e.g., violent acts). They found that section 181 failed to meet the justification requirements under section 1 of the Charter. Parliament had not identified a specific pressing and substantial social problem justifying the restriction on freedom of expression. Even if promoting racial and social tolerance was considered a valid objective, section 181 did not pass the proportionality test established in R. v. Keegstra. Implications:  The decision in R. v. Zundel underscores the importance of upholding freedom of expression, even for minority beliefs deemed controversial or false by the majority. It sets a precedent for scrutinizing legislative measures that restrict speech and emphasizes the need for specific and pressing justifications for such restrictions under the Charter. Relevance: Understanding R. v. Zundel is essential for analyzing the boundaries of freedom of expression in Canada and the limitations placed on legislative measures aimed at regulating speech. The case highlights the judiciary's role in safeguarding fundamental rights and the rigorous scrutiny applied to laws that seek to restrict constitutionally protected freedoms. Case 7: R. v. Butler Key Points: Facts: Donald Butler, a video store owner, faced charges under section 163 of the Criminal Code for selling, possessing, and publicly exposing obscene material, including pornographic videos and other materials. He argued that this violated his freedom of expression under section 2(b) of the Charter. Legal Issue: The case examined whether section 163 of the Criminal Code, which prohibits the distribution and possession of obscene material, infringed upon Butler's freedom of expression under section 2(b) of the Charter. Court's Analysis/Ruling: The Supreme Court held that the primary objective of section 163 was not moral disapprobation but the prevention of harm to society. The court found that section 163 minimally impaired freedom of expression, targeting material that posed a risk of harm to society while excluding material with scientific, artistic, or literary merit. Given the gravity of the harm and the values at stake, Parliament's measures were deemed necessary and proportional. Implications: Balancing Rights: The case highlights the delicate balance between freedom of expression and the prevention of harm caused by obscene material, emphasizing the importance of legislative measures to address societal issues without unduly infringing on fundamental freedoms. Protecting Society: Parliament's objective of protecting society from the harmful effects of obscene material, particularly in relation to violence against women, is considered sufficiently important to justify restrictions on freedom of expression. Relevance: Understanding R. v. Butler is essential for analyzing the legal framework surrounding obscenity laws in Canada and the balance between protecting individual freedoms and preventing harm to society. The case informs discussions on the regulation of pornography and the role of the state in addressing social problems through legislative measures. Case 8: R. v. Sharpe Key Points: Facts: John Sharpe was charged with possession of child pornography for the purpose of distribution or sale. He contested the constitutionality of the Criminal Code provisions prohibiting these offenses, asserting that they infringed upon his freedom of expression under s. 2(b) of the Charter. Court's Analysis/Ruling: The Supreme Court held that the possession of child pornography constitutes a form of expression protected by s. 2(b) of the Charter. However, Parliament need not provide concrete scientific evidence of harm caused by such possession; a reasoned apprehension of harm suffices. The evidence presented established several connections between the possession of child pornography and harm to children, including cognitive distortions, incitement to offend, grooming of victims, and actual abuse during production. Implications: Protection of Children: The case emphasizes the importance of legislation aimed at preventing harm to children, even when such legislation restricts freedom of expression. Limitations on Freedom of Expression: While the possession of child pornography is protected expression, the law does allow for the possession of certain materials that pose little or no risk of harm to children, such as written or visual representations kept exclusively for personal use. Relevance: Understanding R. v. Sharpe is crucial for analyzing the legal framework surrounding the possession of child pornography in Canada and the balance between freedom of expression and the protection of vulnerable individuals, particularly children. Other Shit: Section 2 of the Charter: Everyone has the following fundamental freedoms: a) freedom of conscience and religion; b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c) freedom of peaceful assembly; and d) freedom of association.” Purpose of Freedom of Expression: The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth,  participation in social and political decision making and the opportunity for individual self-fulfillment through expression ○ enabling participation in social and political decision-making ○ encouraging the search for and attainment of truth through open exchanges (the “marketplace of ideas”) ○ fostering individual self-fulfillment through expression ○ Irwin Toy Ltd. v. Québec (Attorney General) Scope of Freedom of Expression: Expression has both content and form: It is defined as “any activity or communication that conveys or attempts to convey meaning” Principle of content neutrality: All content is protected – no matter how offensive, unpopular, disturbing, controversial (Keegestra) or false (Zundel) The form taken by expression is also protected, except for expression that take the form of violence or threats of violence (Keegestra) Freedom of expression includes more than the right to express beliefs and opinions. It protects both speakers and listeners (Edmonton Journal) Freedom of expression, in certain circumstances, could impose positive obligations on government to facilitate expression by legislating or otherwise acting to provide persons with a platform for expression (Baier) Scope of Freedom of Expression - Exceptions: The form taken by expression is also protected, except for expression that take the form of violence or threats of violence (Keegestra) Freedom of expression does not extend to all places: ○ Private property could fall outside the protected sphere of section 2(b) absent state-imposed limits on expression ○ The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which section 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) selffulfillment (Montréal (City); Committee for the Commonwealth of Canada) “In most cases, freedom of expression cases will be decided under section 1 of the Charter, and the results have been mixed.” WEEK 5: Legal Rights 1 file:///C:/Users/gtroz/Downloads/Legal%20Rights%20I.pdf Definitions: Section 7 Analytical Framework: The applicable framework is a three-part test: ○ 1. Is there a real or imminent deprivation of life, liberty or security of the person, or some combination of these interests? ○ 2. What is the relevant principle(s) of fundamental justice (The term "fundamental justice" encompasses principles such as due process, fairness, and procedural fairness, which are essential for upholding the rule of law and protecting individuals' rights.)? ○ 3. Is the deprivation that has occurred in accordance with the relevant principle(s) of fundamental justice? There is no violation of s. 7 if there is no deprivation of life, liberty or security of the person. Demonstrating a deprivation of life, liberty or security of the person is only the first step. There is no violation of s. 7 if the deprivation of life, liberty or security of the person is in accordance with the principle of fundamental justice. Principles of Fundamental Justice - Test Demonstrating a deprivation of life, liberty or security of the person is only the first step. To be considered a principle of fundamental justice, a rule or principle must be: ○ 1. a legal principle; ○ 2. about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate; and ○ 3. identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. Examples: ○ The principles of fundamental justice include the principles against arbitrariness, overbreadth and gross disproportionality ○ It is a principle of fundamental justice that young persons are entitled, on sentencing, to a presumption of diminished moral culpability (D.B.) ○ The independence and impartiality of the judiciary is a principle of fundamental justice (Charkaoui) ○ It is a principle of fundamental justice that a person should not face the penalty or stigma of criminal liability in relation to conduct that was physically or morally involuntary (Ruzic) ○ The professional secrecy of lawyers and notaries is a principle of fundamental justice (Lavallee) Principles of Fundamental Justice - Our Focus Arbitrariness: deprivations of a protected interest that bear no relation to the law’s purpose Overbreadth: laws that are so broad in scope that it can deprive a protected interest in circumstances where doing so bears no relation to the legislative purpose Gross disproportionality: laws that may be rationally connected to the legislative purpose but whose effects are, in terms of their severity, totally out of sync with that objective Life, Liberty and Security of the Person Right to life: ○ interpreted literally: the right to life is engaged where the law or government action imposes death or an increased risk of death, either directly or indirectly ○ the right to life protects against government actions that increase specific risks to life Right to liberty: ○ The right to liberty has at least two aspects: 1) physical and 2) psychological ○ “Physical” aspect is directed to the protection of persons in a physical sense and is engaged when there is physical restraint. ○ Implicated by: imprisonment (Vaillancourt) arrest (Fleming) custodial or non-custodial detention of mentally disordered accused (Swain) Deportation to substantial risk of torture (Suresh; Charkaoui) Extradition from Canada (Kindler) ○ “psychological” aspect is directed to the protection of personal autonomy involving “inherently private choices” that go to the “core of what it means to enjoy individual dignity and independence” (Godbout) ○ implicated by: the right to refuse medical treatment making decisions concerning bodily integrity and other “reasonable medical choices” without threat of criminal prosecution (Carter) ○ not implicated by: making lifestyle choices such as the smoking of marihuana (Caine) requiring employees to be on standby duty, and therefore making less available to their families for several weeks a year (Association of Justice Counsel)  ○ Right to security: interpreted broadly protects the right to control his or her own physical and psychological integrity (Morgentaler; Carter) includes freedom from the threat of physical punishment or maltreatment (Singh) could be engaged by government action that prevents people engaged in risky but legal activity (Bedford) Cases: CASE 1: R. v. Morgentaler Key Points: Facts: Section 251 of the Criminal Code mandated that a pregnant woman seeking an abortion must obtain approval from a "therapeutic abortion committee" at an accredited or approved hospital. Dr. Morgentaler and two other doctors operated a clinic to provide abortions to women who did not have this approval, resulting in criminal charges. They argued that the law violated a woman's right to security of the person. Court's Analysis/Ruling: The Supreme Court held that section 251 infringed upon a woman's physical and bodily integrity by compelling her to carry a fetus to term unless she met certain criteria unrelated to her own priorities and aspirations. The mandatory procedures of the law also resulted in delays in obtaining abortions, increasing health risks and psychological harm to women. Additionally, the law was found to be manifestly unfair as it lacked clarity and imposed practical barriers to accessing abortions. Implications: Protection of Women's Rights: The case underscores the importance of protecting women's rights to make decisions about their own bodies and reproductive health without undue interference from the state. Access to Abortion: The ruling emphasized the need for laws and regulations regarding abortion that are clear, fair, and do not unduly restrict access to safe and timely procedures. Relevance: Understanding R. v. Morgantaler is crucial for analyzing the legal landscape surrounding abortion rights in Canada and the balance between protecting women's rights and regulating access to abortion services within the framework of constitutional principles. CASE 2: Canada v. Bedford Key Points: Facts: Three individuals, Terri-Jean Bedford, Amy Lebovitch, and Valerie Scott, challenged the constitutionality of certain provisions of the Criminal Code related to prostitution, including sections 210 (bawdyhouse), 212(1)(j) (living off the profits of prostitution), and 213(1)(c) (communicating). They argued that these provisions violated sex workers' rights under the Charter, particularly their right to life, liberty, and security of the person under section 7. Pre-Bedford Decision Criminal Code Prohibitions: Section 210: Prohibited the operation of a "common bawdy-house," penalizing individuals who exchanged sexual services for money in any fixed indoor location. Paragraph 212(1)(j): Criminalized living off the earnings of prostitution, impacting security by preventing sex workers from hiring security personnel or other safeguards. Paragraph 213(1)(c): Made it illegal to communicate for the purpose of prostitution in public places, hindering sex workers' ability to screen clients and putting them at risk. Impact on Security of the Person: Section 210: Prevented sex workers from working in safer indoor locations, hindering their ability to implement safety measures. Paragraph 212(1)(j): Denied sex workers access to security-enhancing safeguards, such as bodyguards and drivers, impacting their security. Paragraph 213(1)(c): Displaced sex workers from familiar areas, making them more vulnerable to harm. Court's Analysis/Ruling: The provisions were found to violate the security of the person guaranteed under section 7 of the Charter. They were deemed grossly disproportionate to their objectives and failed to distinguish between exploitative and non-exploitative relationships. The provisions were not justified under section 1 of the Charter. Implications: Protection of Sex Workers' Rights: The case highlights the importance of protecting the rights and safety of sex workers, including their ability to work in safer environments and access security measures. Legal Framework: Understanding Canada v. Bedford is essential for analyzing the legal framework surrounding prostitution laws in Canada and the balance between regulating the industry and upholding Charter rights. Relevance: The ruling in Canada v. Bedford has significant implications for the ongoing debate surrounding prostitution laws and the rights of sex workers in Canada, shaping future legislative and judicial decisions in this area. CASE 3: Carter v. Canada Key Points: Facts: Subsection 241(b) of the Criminal Code, along with section 14, prohibited aiding or abetting a person in committing suicide and consenting to death being inflicted on them, respectively, effectively prohibiting physician-assisted dying in Canada. The plaintiffs, including Gloria Taylor, who suffered from amyotrophic lateral sclerosis, argued that these provisions violated their rights under section 7 of the Charter. Court's Analysis/Ruling: Right to Life: The laws forced patients to consider ending their lives prematurely due to the uncertainty of accessing physician-assisted dying later, impacting their right to life. Right to Liberty and Security: The provisions denied individuals the autonomy to make decisions about their medical care and bodily integrity, infringing upon their right to liberty and security. Dignity and Autonomy: Responding to a grievous and irremediable medical condition is critical to an individual's dignity and autonomy. Intolerable Suffering: The laws subjected individuals to endure intolerable suffering by denying them the option of assisted dying. Principles of Fundamental Justice: Not Arbitrary: The prohibition on assisted suicide is not considered arbitrary as it aims to protect vulnerable individuals from being coerced into ending their lives prematurely. Overbroad: The blanket prohibition encompasses situations unrelated to the objective of protecting vulnerable persons, failing to consider cases where individuals have a rational and persistent wish to end their lives due to their medical condition. Gross Disproportionality: Although not decided, the provisions were considered to potentially be grossly disproportionate to their objective. Justification Under Section 1: The provisions were not justified under section 1 of the Charter. Implications: Right to Die: Carter v. Canada marks a significant development in recognizing the right of individuals with grievous and irremediable medical conditions to make decisions about their end-of-life care, including the option of assisted dying. Legal Framework: The case sets a precedent for analyzing the balance between protecting vulnerable individuals and respecting the autonomy and dignity of those seeking physician-assisted dying. Relevance: The ruling in Carter v. Canada has profound implications for end-of-life care legislation and the rights of individuals facing terminal illnesses, shaping future debates and policies regarding assisted dying in Canada. Other Shit: Section 7 of the Charter: “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” Purpose of Section 7 of the Charter/Legal Rights: Section 7 of the Charter requires that laws or government actions that interfere with life, liberty and security of the person conform to the principles of fundamental justice — the basic principles that underlie our notions of justice and fair process Section 7 General Considerations: The term “everyone” does not include corporations. It includes only human beings. Non-Canadians physically present in Canada will benefit from the protection of s. 7. Section 7 is triggered where the law or government action results in a deprivation of life, liberty or security of the person. Where the deprivation is not in accordance with the principles of fundamental justice, there will be a violation of s. 7. There is a relatively limited scope for justifying violations of s. 7 under s. 1 of the Charter. WEEK 6: Legal Rights 2 file:///C:/Users/gtroz/Downloads/Legal%20Rights%20II.pdf Definitions: Cases: CASE 1: Spencer v. Canada (Health) Key Points: Facts: Applicants challenged the orders imposed under the Quarantine Act, particularly the requirement for mandatory stays in government-approved accommodations (GAA) or designated quarantine facilities (DQF) for 24–72 hours after international air travel, pending COVID test results. They argued that these measures infringed upon their rights under section 7 of the Charter. Court's Analysis/Ruling:  Security of the Person: The stress and anxiety experienced during the quarantine did not reach the threshold necessary to engage the section 7 right to security of the person. The evidence did not demonstrate significant physical risk or psychological harm. Liberty Interests: The requirement to stay in a GAA was acknowledged to engage the applicants' liberty interests but was deemed to be at the lower end of encroachments on liberty contemplated by section 7. Justification: The court found that the GAA measures were not arbitrary, overbroad, or grossly disproportionate. They were deemed to align with the objective of reducing the introduction and spread of COVID-19 into Canada. Implications: Balance of Rights: Spencer highlights the delicate balance between public health measures and individual rights, particularly concerning quarantine requirements during a global health crisis. Legal Framework: The case provides insights into how courts assess the constitutionality of COVID-related restrictions under the Charter, considering factors such as necessity, proportionality, and impact on individual liberties. Relevance: Understanding Spencer is essential for analyzing the legal framework surrounding COVID-related regulations and their implications for individual rights, public health, and governmental authority in times of crisis. CASE 2: Canadian Frontline Nurses v. Canada (Attorney General) Key Points: Facts: In Canadian Frontline Nurses v. Canada (Attorney General), the applicants challenged a provision that created an offence punishable by imprisonment, arguing that it engaged the liberty interest protected by section 7 of the Charter. They also contended that the provision was geographically overbroad, extending temporary measures throughout the country even where no disruption had occurred. Court's Analysis/Ruling: Liberty Interest: The court considered whether the provision deprived individuals of their life, liberty, or security of the person and whether this deprivation was in accordance with the principles of fundamental justice. While the extension of temporary measures appeared geographically overbroad, the court found that the deprivation was temporary in nature and subject to judicial review. Consequently, the court did not find a breach of section 7. Implications: Temporary Nature of Measures: The ruling underscores the significance of considering the temporary nature of measures and their subjectivity to judicial review in assessing potential breaches of constitutional rights.  Judicial Oversight: The case highlights the role of judicial review in safeguarding individuals' rights when faced with government actions or legislation that may impact their fundamental freedoms. Relevance: Understanding Canadian Frontline Nurses v. Canada (Attorney General) is crucial for analyzing the balance between public health measures and individual liberties, particularly concerning the scope and temporary nature of government regulations during times of crisis. CASE 3: Canada (Attorney Generak) v. PHS Community Services Society Key Points: Facts: Centered around Insite, North America's first safe injection facility located in Vancouver's Downtown Eastside. The facility provided clean injection equipment and supervised injection services to drug users under medical supervision. The federal Minister of Health had the authority under section 56 of the Controlled Drugs and Substances Act (CDSA) to exempt facilities from certain provisions of the Act for medical or scientific purposes or in the public interest. Court's Analysis/Ruling: Arbitrary Decision: The Minister's decision to deny an exemption for Insite was deemed arbitrary and grossly disproportionate. The evidence showed that Insite's operations were effective in reducing drug-related harms, such as overdose deaths and transmission of diseases. The decision was not necessary for the Act's stated purposes of protecting public health and safety. Grossly Disproportionate: The denial of Insite's services to its users was found to be grossly disproportionate to any potential benefits Canada might derive from maintaining a uniform stance on drug possession laws. Charter Rights: The decision infringed upon the complainants' rights under section 7 of the Charter, which protects the right to life, liberty, and security of the person. The Minister was ordered to grant an exemption for Insite, and future decisions must consider the Charter's principles of fundamental justice. Implications: Protection of Public Health: The case highlights the importance of harm reduction measures in addressing public health concerns related to drug use, emphasizing the effectiveness of supervised injection facilities like Insite. Charter Rights: It underscores the obligation of government decisions to respect individuals' rights under the Charter, particularly when considering measures that impact vulnerable populations. Judicial Oversight: The ruling emphasizes the role of the judiciary in ensuring that government decisions are consistent with the principles of fundamental justice outlined in the Charter. Relevance: Understanding Canada v. PHS Community Services Society is crucial for analyzing the intersection of public health policy, individual rights, and government decision-making, particularly in the context of harm reduction strategies for addressing drug-related harms. CASE 4: R. v. Heywood Key Points: Facts: Centered around the accused, who was subject to section 179(1)(b) of the Criminal Code due to prior convictions of sexual assault involving children. This provision prohibited individuals from committing vagrancy by loitering near school grounds, playgrounds, public parks, or bathing areas. Heywood was observed walking near a playground area carrying a camera with a large lens, leading to his arrest under this provision. Court's Analysis/Ruling: Overbreadth: The Court found the provision overly broad in three respects. Firstly, it applied to all public parks and bathing areas, extending beyond places where children are likely to congregate. Secondly, it imposed a lifetime prohibition without any possibility of review, even for individuals who may no longer pose a threat to children. Thirdly, it applied indiscriminately to individuals regardless of the severity of their prior offenses or any subsequent rehabilitation. Minimal Impairment: While the objective of protecting children from sexual offenses was deemed pressing and substantial, the provision failed the minimal impairment branch of the section 1 analysis. Its broad scope and lack of nuance rendered it disproportionate to its intended purpose. Implications: Protection of Children: The case underscores the importance of legislative measures aimed at protecting children from sexual offenses. However, it highlights the need for such measures to be carefully crafted to avoid overbreadth and ensure they effectively target genuine threats. Individual Rights: R v. Heywood emphasizes the importance of individual rights and the Charter's protections, particularly in cases where individuals are subject to legal restrictions based on past behavior. Legislative Precision: It serves as a reminder of the importance of legislative precision and the need for laws to be tailored to achieve their objectives without unduly infringing upon individuals' rights. Relevance: Understanding R v. Heywood is essential for evaluating the constitutionality of laws aimed at protecting vulnerable populations, such as children, and ensuring that such laws strike an appropriate balance between public safety and individual rights. Case 5: R v. Patrick Key Points: Facts: The police suspected the accused of operating an ecstasy lab but lacked evidence to obtain a search warrant. To gather evidence, they covertly seized garbage bags placed for collection from the accused's property. The bags contained incriminating evidence, such as invoices for chemicals used in drug preparation. With this evidence, the police obtained a search warrant for the accused's home, where they discovered an ecstasy lab. Legal Issue: The accused argued that the seizure of the garbage bags breached his s. 8 Charter rights, which protect against unreasonable search and seizure. Court's Analysis/Ruling: The Supreme Court ruled that the accused had abandoned any privacy interest in the contents of the garbage bags by placing them for collection in a stand indented in the back fence of his home adjacent to a public alleyway. As anyone passing by had access to the bags, the police's access was not greater than that of the public. The accused's act of disposing of the bags for collection was inconsistent with asserting a constitutionally protected privacy interest. Therefore, the seizure of the garbage bags did not violate the accused's s. 8 Charter rights. Implications: Abandonment of Privacy Interest: The case establishes that individuals may abandon their privacy interest in items placed for collection as garbage, particularly when accessible to the public. Reasonable Expectation of Privacy: The decision underscores the importance of considering the context in determining whether a reasonable expectation of privacy exists, balancing factors such as accessibility and the individual's actions. Relevance: Understanding R v. Patrick is crucial for analyzing the boundaries of privacy rights in the context of garbage disposal and the implications for police actions in gathering evidence in criminal investigations. CASE 6: R v. A.M. Key Points: Facts: Police brought sniffer dogs into a high school at the invitation of the principal to search for drugs. One of the dogs reacted to A.M.'s backpack, prompting the police to open it without a warrant. Illegal drugs were found inside, leading to charges against the student for possession of cannabis marihuana and psilocybin for the purpose of trafficking. Legal Issue: The student argued that the search of his backpack violated his s. 8 Charter rights, which protect against unreasonable search and seizure, and sought to exclude the evidence obtained. Court's Analysis/Ruling: The Supreme Court held that the use of sniffer dogs to search students' backpacks constituted a search. Backpacks, like  briefcases and purses, are considered repositories of personal items and command a measure of privacy, especially for students who carry them throughout the day. The search without a warrant infringed upon the students' privacy interests and violated their s. 8 Charter rights. While police efficiency and school policies are important, they cannot justify infringing on constitutional rights. Reasonable Suspicion Standard: In routine criminal investigations, the police are entitled to use sniffer dogs based on reasonable suspicion. If there are no grounds of reasonable suspicion, the use of sniffer dogs violates the s. 8 reasonableness standard. However, if reasonable suspicion exists, prior judicial authorization is not required if the police are lawfully present in the area. Implications: Protection of Privacy in School Settings: The case underscores the importance of protecting students' privacy rights, even in a school environment. Balancing Police Powers and Privacy Rights: It highlights the need to balance police efficiency with the protection of constitutional rights, emphasizing that law enforcement actions must be grounded in reasonable suspicion. Requirement of Reasonable Suspicion: The decision clarifies that the use of sniffer dogs requires reasonable suspicion, and without such grounds, the search would be deemed unreasonable under s. 8 of the Charter. Relevance: Understanding R v. A.M. is crucial for analyzing the boundaries of police powers and privacy rights in school settings and the requirements for conducting searches using sniffer dogs. CASE 7: Canadian Frontline Nurses v. Canada (Attorney General) Key Points: Facts: The Applicants contested the validity of the Economic Order issued by the Canadian government, arguing that it did not meet the requirements of a reasonable search under section 8 of the Charter. The Economic Order compelled financial institutions to disclose information about individuals suspected of being designated persons without prior authorization or involvement of a neutral third party. Legal Issue: The central issue was whether the Economic Order, which mandated financial institutions to disclose information without defined standards or guidance on belief, violated the applicants' rights under section 8 of the Charter. Court's Analysis/Ruling: The court found that the Economic Order lacked clarity on the standard required for financial institutions to disclose information about designated persons. It allowed disclosure based solely on a "bare belief" by the RCMP without any objective standard such as reasonable  grounds or reasonable suspicion. Superintendent Beaudoin's testimony confirmed the absence of an objective standard. Consequently, the court ruled that the failure to impose an objective standard before freezing accounts breached section 8 of the Charter. Implications: Protection of Privacy Rights: The case emphasizes the importance of protecting individuals' privacy rights, particularly concerning financial information, even in non-criminal contexts. Requirement of Objective Standards: It underscores the necessity of defining clear and objective standards for searches and disclosures of personal information to ensure compliance with section 8 of the Charter. Judicial Oversight: The decision highlights the role of judicial oversight and the involvement of neutral third parties, such as judges, in authorizing searches to safeguard against arbitrary intrusions on privacy. Relevance: Understanding Canadian Frontline Nurses v. Canada is crucial for analyzing the legality of government orders and actions that involve the disclosure of private information, especially in the absence of defined standards or judicial oversight. It serves as a precedent for cases challenging the legality of government measures that potentially infringe on individuals' privacy rights under the Charter. Other Shit: Section 7 of the Charter: “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” Section 7 in Criminal Law Context: Criminal law provisions could also be found to violate s. 7 if they are not in accordance with the principles of fundamental justice ○ Arbitrariness: deprivations of a protected interest that bear no relation to the law’s purpose. ○ Overbreadth: laws that are so broad in scope that it can deprive a protected interest in circumstances where doing so bears no relation to the legislative purpose. ○ Gross disproportionality: laws that may be rationally connected to the legislative purpose but whose effects are, in terms of their severity, totally out of sync with that objective. Section 8 of the Charter: “Everyone has the right to be secure against unreasonable search or seizure” Section 8 General Considerations: The term “everyone” includes corporations (which makes it different from s. 7 of the Charter) The purpose of section 8 is to prevent unjustified searches before they happen, not simply to determine after the fact whether they ought to have occurred in the first place (Southam) The values underlying the privacy interest protected by section 8 are dignity, integrity and autonomy (Plant) Section 8 Analytical Framework: The applicable framework is a two-part test: ○ Has there been a “search” or a “seizure”? An inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access Only where those state actions constitute an intrusion upon some reasonable expectation of privacy (REP) of individuals does the government action in question constitute a “search” or a “seizure” within the meaning of s. 8 ○ If so, is the interference reasonable? REP analysis determines whether s. 8 is engaged Threshold that must be met to trigger s. 8 protection. In other words, the impugned action must interfere with a REP Reasonable Expectation of Privacy (REP) analysis determines whether s. 8 is engaged. ○ Threshold that must be met to trigger s. 8 protection. In other words, the impugned action must interfere with a REP. Examples: ○ YES, Section 8 engaged because interference with reasonable expectation of privacy: A student’s backpack (A.M.) The driver of a vehicle in the vehicle (Belnavis) Dwellings (Feeney) Taking of bodily samples (Stillman) ○ NO, lacked a reasonable expectation of privacy: The passenger of a vehicle (Belnavis) Is the interference reasonable? A search warrant is central to the s. 8 guarantee (Hunter): ○ 1) a neutral and impartial arbiter capable of acting judicially;  ○ 2) prior authorization (since the purpose is to prevent unreasonable searches); and ○ 3) reasonable and probable grounds “Reasonable grounds to believe” is the common standard in the Criminal Code “Reasonable suspicion” or “reasonable grounds to suspect” is to be contrasted with the higher standard of “reasonable grounds to believe” A warrantless search is prima facie unreasonable, in which case the government bears the burden of proving reasonableness (Hunter) In warrantless searches, the government must overcome the initial presumption of unreasonableness associated with warantless searches, providiging evidence that justifies the lawfulness and reasonableness of the search - government must establish (Collins): ○ 1) the search was authorized by law; ○ 2) the law itself is reasonable; and ○ 3) the search was carried out in a reasonable manner To be “reasonable” an authorizing law should: ○ serve an important government objective (Jarvis) ○ reflect the least intrusive means by which the state interest can be achieved (McKinlay Transport) ○ be guided by some standard, criteria or circumstances such that the scope and the authorized intrusion is clear to those administering the law (Shoker) ○ be reviewable (Tse, Chehil, Goodwin) this may require accountability measures (e.g., notice, review bodies, etc.) in some circumstances 4 administrative law questions