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Lecture 3

LAW 201 Lecture 3: Law201 – Lecture 3 – Jan 31

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LAW 201
Mary Jo- Maur

Law201 – Lecture 3 – Jan 31 Charter of rights and freedoms: • Part of written parts of constitution o Expressed written guarantees for freedom of expression, gender equality, etc. o Just because rights are set out in charter does not mean that they are absolute – there is a limit ▪ S.33 – not with-standing clause – doesn’t apply to every right – equality rights Application of the charter: • How do we know when to apply the charter of rights and freedoms? o Some people wanted it to apply all the time o Some people wanted it to apply directly to things like large organizations o Charter was eventually restricted to government – how this was done was by looking at the charter itself – didn’t apply it to court ▪ We know government is involved if there is legislature Boundaries of government: Is a University ‘government’? • McKinney v. University of Guelph (1990) o Mandatory retirement age 65 • Why would the University be considered government? o University created by statute o Supported with government funding o Subject to government regulation BUT o Have own governing body o Not under day to day control government o Autonomous decision-making (in regulated environment) Rights protected in the charter: • Implied guarantee that protected freedom of expression before we even had the charter • S.7 – Life, Liberty, Security of the person o Government can’t deprive in a way that is inconsistent o In some cases includes fundamental personal decisions • Carter v. Canada o Assisted suicide o Criminal code used to have blanket ban on assisted suicide ▪ People who were competent were not allowed to exercise choice ▪ Incompatible with principles of fundamental justice Examples of charter rights: • S.2 – Freedom of religion • Hutterian Brethren (2009) (S.2A) o Religious beliefs – no idols o No photos on driving licenses ▪ Violate religious beliefs and get license or not have one at all o Accommodation? ▪ Important to not have identity theft to have photos on licenses o Right limited Limiting Charter rights under S.1: • Limit prescribed by law -> Valid purpose? (pressing and substantial objective?) -> proportionality (rational connection? Minimal impairment? Final balance?) Justified limits – Tobacco advertising • RJR MacDonald v. Canada (1995) o How ‘strictly’ to apply Oakes? Nature of the speech? Context? o Objective? Protect health vs. limit persuasive advertising 2 o Rational connection? Proof? Or reasonable inference o Minimal impairment? Complete ban vs. partial ban on speech o Etc. Charter challenges: dialogue between courts and government: • Charter challenges – chall
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