Step One: Does the Charter apply to this situation? The Charter only applies to Government action due to s.32(1) of the Charter: Type Case Ratio Examples Legislation Vriend Applies to legislation, YES: even that Alberta human regulate the private rights sphere, and also legislation that applies to specifically left government inaction out sexual w/n legislation (i.e. orientation. exclusions) The Dolphin The Charter does NOTE: Delivery apply to common-law Highly Law by virtue of s.52. criticized, b/c However the Charter exempts the does not apply to Court from common-law rules in being a private actions YET – ‘government the common-law will actor’ although be interpreted in at many times accordance with clearly the Charter principles. Court is making Also states that government Charter does not orders. Mainly apply to judges and survives for their decisions the principal But this is that the impossible common-law because the will be Charter interpreted in expressly accordance applies to with Charter judges in their principles. capacity: i.e. CAN ARGUE presumption COMMON of innocence. LAW So now focus VIOLATES: is on whether Essentially judge is acting deals with the in public problem that a capacity Court can’t do (charter) or a full scale s.1 not (no analysis for charter). themselves, as who will argue the enforcers side? So the Court in later cases just uses
Step One: Does the Charter apply to this situation? The Charter only applies to Government action due to s.32(1) of the Charter: Type Case Ratio Examples Legislation Vriend Applies to legislation, even that regulate the private sphere, and also applies to government inaction w/n legislation (i.e. exclusions) YES: Alberta human rights legislation that specifically left out sexual orientation. The Dolphin Delivery The Charter does apply to common-law by virtue of s.52. However the Charter does not apply to common-law rules in private actions – YET the common-law will be interpreted in accordance with Charter principles. Also states that Charter does not apply to judges and their decisions But this is impossible because the Charter expressly applies to judges in their capacity: i.e. presumption of innocence. So now focus is on whether judge is acting in public capacity (charter) or not (no charter). NOTE: Highly criticized, b/c exempts the Court from being a ‘government actor’ although at many times clearly the Court is making government orders. Mainly survives for the principal that the common-law will be interpreted in accordance with Charter principles. CAN ARGUE COMMON LAW VIOLATES: Essentially deals with the problem that a Court can’t do a full scale s.1 analysis for themselves, as who will argue the enforcers side? So the Court in later cases just uses Law
Thomson-Law_100-_Final_Charter_Analysis.docx