There are three substantial questions that must be considered in this case; which are, does the charter of rights and freedoms apply to the CPCC, has Tim’s rights been violated and if so, can this violation be justified in a free and democratic society. Section 32 1(a) and (b) applies to the Canadian government and government (parliament/ legislators) of the government and all their authority they are in. Only the government has the ability to violate the charter of rights and freedoms.
If a violation has occurred and the charter does come into effect (operation dismantle v. the queen). The charter does not apply to contractors or tort laws as set out by dolphin delivery as the authority; however, the work CPCC is not a contract based as their service to the government is infinitive. To determine whether or not section 32 (1)(a) or (b) applies to Canadian Private Copyright Collective, thereby also putting into effect the charter, one must consider if the five part legal tests set by Pridgen v. University of Calgary.
According to this test, the charter applies when a law been passed by parliament or in this the operation of parliament/legislature. There are laws passed by the government of Canada to protect copyrights like the Copyright Act C-42. Moreover, CPCC It “is an organization that administers the rights of several copyright owners. It can grant permission to use their works and set the conditions for that use. ” As an entity that has the ability to discourse and administer public policy on copyright laws they clearly have an extension of authority from the government of Canada (Brunswick Broadcasting v. Nova Scotia) therefore, they pass this part of the test. Next, CPCC has the Delegation of Statutory Power.
As the government is so large in size and does not have the ability to control everything they extend their license administering authority to CPCC. For instance if Tim does want to use Justin Bieber lyrics he needs legally binding authority administered by the CPCC on behalf of JB legally authorized by the government of Canada. As established in Ramsden v. Peterborough, CPCC’s authority comes directly from federal laws.
Moreover, CPCC exercises the power given to them by the state, in this case, the authority to rule over copyright violations has shown that CPCC has delegation of power; on the grounds that it would imprison Tim if he violated CPCC’s legally binding terms (Black v. Law Society of Alberta). Last, the court cannot violate the freedom of expression of the CPCC because CPCC’s authority comes from the government (lavigne v. OPSEU). Furthermore, part three of the test is is CPCC government by nature which it is.
Factors to consider CPCC’s tax collecting authority (CPCC v. Amico Imaging Services Inc). This factor is a clear indication they are government by control, as taxation authority is one the highest forms of government in control. (Godbout v. Longueuil). However, CPCC does not have law making authority (GVTA and BCT v. CFS and BCTA). Conversely, based on a trilogy of cases it can be established that CPCC is not government in control (McKinney v. University of Guelph, Stoffman v. Vancouver General Hospital and Douglas FA v.
Douglas College)The government has no control on the routine or day to day control of CPCC. Moverover, CPCC is an enterprise that collects money from clients to provide a service. Though it does provide a public function it is not a direct organ and hires its own staff and board of directors. Last, collecting the private copying levies, enforce the private copying tariff and distribute the private copying levies is not a comprehensive social program therefore, CPCC is not government by nature (Eldridge v. BC). o concur because multiple parts of the test apply to CPCC it can be established that the charter of rights and freedoms does apply. Everyone has the right to be secure against an unreasonable search and seizure. Citizen or not any person in Canada is entitled to section 8 rights. However, these rights do not extend to corporations and can be justified under section 33, section 1 and reasonable searches. First we will examine if any violations occurred under section eight of the charter of rights and freedoms.
Part one is reasonable expectation of privacy which does exist because Tim does have reasonable expectation of privacy over his backpack from the police therefore section eight of the charter does apply (Authority: R. v. Plant). Privacy is context specific in this case Tim’s backpack would be on his persons at all times and would be under his supervision and protection therefore there is a high degree of privacy (R. v. Buhay, ). Moreover, he did not openly want to share the contents of his backpack (R. v. Mellenthin).
There is no reasonable expectation that Tim’s privacy would be reduced at any time (R. v. Campanella). Then, it is to be determined whether the search of Tim’s bag was authorized by law. There are three stages to this test each with substages. The first is common law and its subsections are plain view, incident of arrest and exigent circumstances. Because the CPCC officer physically saw Tim pull out flyers from his bag, then read the flyer and further proceeded to investigate it can be established that the flyers was in plain view (R. . Tessling); however, the content of his backpack was not (R. v. Law).
Furthermore, these circumstances were not exigent as there was no potential of imminent loss or removal of evidence (R. v. Grant) and Tim was not under arrest. Part two is whether or not the CPCC investigators had obtained a warrant which is evident from the facts that they did not; however, if a warrant was obtained the court would also examine if the warrant was received in advance, administered by a judicial officer and had reasonable and probable grounds.
Last, the search was conducted in somewhat of a reasonable manner as it was done by a member of the same sex however, was public. Therefore, the search was unreasonable as no judicial officer upon sworn evidence found a good cause or reason to believe that illegal use of music was concealed in Tim’s backpack nor did the cpcc officers conduct a search without a warrant on an arrested, in plain view or exigent circumstances. Everyone has section ten (a)(b) and (c) rights on arrest or detention.
Section ten rights do not apply to voluntary participation conversely do apply to coercion or compulsion by a member of the state. In this case, Tim was cornered and restricted from leaving (R. v. Therens). Yet the CPCC officers, did not assume control over Time that had legal ramifications if he did not comply. Detention included restraint on liberty in the obvious form of physical constraint, but also when an agent of the state assumed control over the movement of a person by demand or direction which may have significant legal consequences and which prevents or impedes the right to counsel.
The police asked Tim questions and he refused to speak to them which is legal. Moreover, because he was not arrested he was not given his miranda rights either which would include reasons for arrest, timely warning, content of warning, reasonable opportunity to obtain legal representation or waiver of counsel. Tim was not arrested therefore does not gain benefits of section ten. Remedies under section 24(1) and (2) must be considered to ratify this charge against the state.
Under section 8 and 10 the court can fashion any solution they want to remedy the infringement. The violations was egregious because it is a blunt violation of his rights due to police conduct and the lack of a warrant. Also, trial fairness is severely impacted as the information directly implicated Tim to the illegal act. This under section 24(2) the court would move to exclude the evidence (R. v. Collins). However, the state still has the authority to use section 33 of the charter of rights and freedoms to trump the rights of Tim.
Last, Section one analysis would be were the reasonable limits prescribed by law answer is yes, conducting searching is reasonable. The purpose however, was not pressing and substantial, There is a rational connection between enforcing the copyright act and investigating accused persons. There was not a minimal impairment however because the CPCC agents could have gotten a warrant And there was no proportionality as discovering Jordan’s identity was not a sufficient reason for police to forgo a warrant.