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1 CONSTITUTIONAL LAW: CHARTER Charter 5 Pre-Charter 5 Implied Bill 1 CONSTITUTIONAL LAW: CHARTER Charter 5 Pre-Charter 5 Implied Bill of Rights 5 Switzman v Elbling 5 Dupond v City of Montreal 6 Ontario v OPSEU 6 Bill of Rights 6 R v Drybones 6 AG (Canada) v Lavell 6 Bliss v AG (Canada) 7 Charter Development 7 Trudeau, “A Canadian Charter of Human Rights” 7 Cairns, “Charter versus Federalism” 7 Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms” 7 Weinrib, “Of Diligence and Dice,” “Paradigm Lost?” 7 Leclair, “Constitutional Principles in the Secession Reference” 8 Gold, “The Mask of Objectivity” 8 Bogart, “Courts and Country” 8 Petter, “Immaculate Deception” 8 Hogg and Bushell, “The Charter Dialogue” 8 Roach, “The Supreme Court on Trial” 9 Application 9 Private Action 9 RWDSU v Dolphin Delivery 9 Governmental Actors 9 McKinney v University of Guelph 10 Stoffman v Vancouver General Hospital 10 Douglas/Kwantlen Faculty Association v Douglas College 10 Vancouver Transportation v Canadian Federation of Students 10 Governmental Acts (by Non-Governmental Actors) 11 Eldridge v British Columbia (AG) 11 Slaight Communications Inc v Davidson 11 Blencoe v British Columbia (Human Rights Commission) 11 R v Buhay 11 Governmental Inaction 12 Vriend v Alberta 12 Dunmore v Ontario (AG) 12 Intersections with the Courts and Common Law 12 BCGEU v British Columbia (AG) 12 Hill v Church of Scientology of Toronto 12 2 R v Salituro 13 RWDSU v Pepsi-Cola Canada Beverages 13 Grant v Torstar Corp 13 Doré v Barreau du Québec 13 Territorial Limits 13 R v Cook 13 R v Hape 14 Canada (Justice) v Khadr 14 Amnesty International v Canada 14 Standing 14 Canada v Downtown Eastside Sex Workers United Against Violence Society 14 Limitation 15 Section 1: “Prescribed by Law” and “Demonstrably Justified” 15 R v Therens 15 Osborne v Canada (Treasury Board) 15 Greater Vancouver Transportation Authority 15 R v Oakes 16 Big M 16 Dagenais v Canadian Broadcasting Corp 17 Edmonton Journal v Alberta (AG) 17 Irwin Toy 17 R v Lucas 17 Choudhry, “So What is the Real Legacy of Oakes?” 17 Section 33: “Notwithstanding” 18 Ford v Quebec (AG) 18 Weinrib, “The Notwithstanding Clause” 18 Hiebert, “The Notwithstanding Clause” 18 Remedies 18 Roach, Constitutional Remedies in Canada 19 Section 52 19 Schachter v Canada 19 Vriend v Alberta 20 M v H 20 R v Sharpe 20 R v Ferguson 20 Re Manitoba Language Rights 21 Carter v Canada (AG) 21 Section 24(1) 21 Little Sisters Book and Art Emporium v Canada 21 Canada (Prime Minister) v Khadr 21 Canada (AG) v PHS Community Services 21 3 Doucet-Boudreau v Nova Scotia (Minister of Education) 21 Thibodeau v Air Canada 22 Vancouver (City) v Ward 22 Mackin v New Brunswick (Minister of Finance) 23 2(b): Freedom of Expression 23 Purpose 23 Roach and Schneiderman, “Freedom of Expression in Canada” 23 R v Keegstra 23 Moon, “The Constitutional Protection of Freedom of Expression” 23 Commercial Expression 23 Irwin Toy Ltd v Quebec (AG) 23 Ford v Quebec (AG) 24 Rocket v Royal College of Dental Surgeons 24 RJR MacDonald Inc v Canada (AG) 24 Canada (AG) v JTI MacDonald Corp 25 Ramsden v Peterborough (City) 25 R v Guignard 25 Hate Speech 25 R v Keegstra 26 R v Zundel 27 Canada (Human Rights Commission) v Taylor 27 Moon, “Report to the Canadian Human Rights Commission Concerning Section 13” 27 Ross v New Brunswick School District 27 Saskatchewan (Human Rights Commission) v Whatcott 27 2(a): Freedom of Conscience and Religion 28 R v Big M Drug Mart 28 Syndicat Northcrest v Amselem 28 Bouchard and Taylor, “Building the Future: A Time for Reconciliation” 29 Multani v Commission scolaire Marguerite-Bourgeoys 29 Alberta v Hutterian Brethren of Wilson Colony 29 R v NS 30 Conflicts of Rights 30 15: Equality Rights 31 The Test 31 Andrews v Law Society of British Columbia 31 Lavoie v Canada 31 R v Turpin 32 1995 Trilogy 32 Law v Canada (Minister of Employment and Immigration) 32 Gosselin v Quebec (AG) 33 4 Canadian Foundation for Children, Youth, and the Law v Canada 33 R v Kapp 33 Quebec (AG) v A 33 Kahkewistahaw First Nation v Taypotat 34 Adverse Effects 34 Eldridge v BC (AG) 34 Vriend v Alberta 35 Enumerated and Analogous Grounds 35 Pothier, “Connecting Grounds of Discrimination to Real People’s Real Experiences” 35 Corbiere v Canada (Minister of Indian and Northern Affairs) 35 15(2) Ameliorative Laws or Programs 36 R v Kapp 36 Lovelace v Ontario 36 7: Life, Liberty, and Security of the Person 37 BC Motor Vehicle Reference 37 Interests Protected 37 B(R) v Children’s Aid Society of Metropolitan Toronto 37 New Brunswick (Minister of Health and Community Services) v G(J) 38 Blencoe v BC (Human Rights Commission) 38 R v Morgentaler 38 Principles of Fundamental Justice 39 Malmo-Levine 39 Canada (AG) v PHS Community Services Society 39 Carter v Canada (AG) 39 Gosselin v Quebec (AG) 41 Chaoulli v Quebec (AG) 41 Further Section 7 Developments 42 5 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. 2. 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 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. 15. Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. (2) Subsection (1) does not preclude any law, program, or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. 24(1). Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. 27. Charter shall be interpreted in a manner consistent with the preservation of the multicultural heritage of Canadians. 32. This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. 33. Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. 52. The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Pre-Charter Implied Bill of Rights Switzman v Elbling ● Challenged ​Padlock Act​ to control communism (illegal to use house to propagate communism) → action for eviction → challenged act as being ​ultra vires ● Rand: rejects conception of federalism giving absolute power to either legislature, which Quebec argued because the ​Act works on property (92(13)) and is a local and private matter (92(16)) ○ Property purpose is subsidiary to another head of power → pith and substance analysis ○ Cannot use property head of power to indirectly work ​ultra vires ○ But ban is directed against freedom/civil liberties so“there is nothing of civil rights in this” ○ Preamble of constitution ‘similar in principle to that of the United Kingdom” means “government by the free public opinion of an open society” → requires “a virtually unobstructed access to and diffusion of ideas” ■ Freedom of discussion (subject-matter of ​Act​) is inherently not local/private ■ Any prohibition would have to be part of criminal law (e.g. sedition laws) ● Abbott (concurring): free expression on public policy and right to discuss/debate is essential to parliamentary democracy and provincial right to restrict it must be purely private (e.g. defamation) ○ Also outside of federal jurisdiction--would be limited to criminal law or POGG 6 ● Taschereau (dissenting): not criminalizing communism but preventing conditions that favour the development of crime, including by controlling property--validly in 92(13) ○ Fundamental liberties of press and speech would become privileges if misused for communism and rights “must be exercised within the bounds of legality” Dupond v City of Montreal ● Bylaw with 30-day prohibition on public gatherings--challenged as invasion of 91(27) and infringement of fundamental freedoms of speech, assembly, association, prss, religion → ​intra vires ● Beetz (majority): none of the freedoms are entrenched or within an exclusive jurisdiction ○ Assemblies ≠ speech --“display of force rather than… appeal to reason; their inarticulateness prevents them from becoming part of language and from reaching the level of discourse” ○ No English right to hold public meetings on a highway or in a park--may even be trespass ○ Can be regulated by federal or provincial legislation, depending on aspect ○ Canadian Bill of Rights​ doesn’t apply to provincial and municipal legislation Ontario v OPSEU ● Ontario Public Service Act​ prevented public service employees from participating in some political acts ● Basic constitutional structure includes freely elected legislative bodies and neither federal nor provincial legislatures can enact legislation which would “substantially interfere” with that structure ○ But impugned legislation is in essence provincial and regulating provincial public service ● N.b.
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