Canadian Constitutional Administrative Law by alicejenny

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									September 22, 2012
    Ian Greene
 Course expectations
 Introductions
 Electronic resources: www.yorku.ca/igreene
 Introduction to public law and the Canadian legal
  system
 Lunch at 12:00 noon, Senior Common Room (140
  McLaughlin College upstairs)
 Profs. Soennecken and Greene: guest lecturers around
  3 pm (we’ll get together with Section A). Prof.
  Fredricksen will be in October and Prof. Barbosa in
  November)
 Seminar Presentations: sign-up sheet
 Evaluation of readings in each class
 Assignments
 Seminar participation
 Plagiarism & strategy to avoid it
    Do your research, put your sources away, and write the first draft in
     your own words without looking at any of your sources. Then add
     footnotes indicating where ideas came from, and you may add up to
     four quotes for effect.
    Assignments can be automatically checked by “turnitin,” which
     reports per centage of overlap with other sources (unless they are
     quoted and properly referenced), as well as the names of these
     sources.
 Name
 How did you get interested in public administration?
 How do you think your work (current or past) relates
  to Canadian constitutional law?
 Graduate Diploma in Justice System Administration:
   Take PPAL 6140 3.0 (for those not already in this year’s
    course, do it in your second year). This course is over
    and above MPPAL requirements (Profs Jacobs & Greene)
   MRP has to be related to justice system administration
   Internship
   If interested, discuss with me
 www.yorku.ca/igreene: access to supplemental course
  readings, powerpoint presentations, audio files.
 Excerpts from Greene’s The Charter of Rights (new edition)
  are posted on www.yorku.ca/igreene (optional
  supplemental reading).
 I need your accurate email address: check the circulated
  list with the sign-up sheet
 “Adjudication” is the dispute-                  What are "legal persons?“
    resolution system used in courts.                People, corporations, and
    Characteristics?                                  governments
    Law applied to facts
    Judge makes final decision                   What's the difference between
                                                   negative and positive law?
    Reasons presented for judgment
 How is adjudication different from
                                                     Negative law: prohibited from
    arbitration and mediation?                        certain behaviours (crim. law)
    Arbitration: standards agreed to by             Positive law: positive incentive
    disputing parties applied, but not usually        to change behaviour (tax
    the whole body of law                             deductions for donations to
    Mediation: assistance in listening,              political parties)
    understanding, and resolving (contract)
 Main sources of law:                common = general
    statute law (laws created by     common law judges "find" the
     legislatures)                     law
    case law (created by judges)     Parliamentary sovereignty or
 Other (informal) sources: Ten        legislative supremacy. Aggregate
  Commandments, Magna Carta            legislature can do anything.
  (1209), canon law, writings of       Seven-fifty-formula; unanimity
                                       formula; some-but-not-all
  legal scholars (eg. Coke ~ 1630,     formula; provinces alone; feds
  and Blackstone ~ 1770),              alone.
  community standards (eg.
                                      Constitutional conventions:
  obscenity cases), Hogg's &           “rules of political behaviour
  Monahan’s texts.                     regarded by political actors as
 ratio decidendi; obiter dicta        binding,” eg responsible gov’t
 Reception: All English statutes            Federal gov't: date depends on
    enacted prior to reception are law in       when federal laws were inherited
    Canada, unless changed in Canada.           from former colonies. Eg. Quebec,
     NB & NS: 1758                             1763; Ont. 1792.
                                               Imperial statutes remained in force
     Quebec: 1759: French civil                until Statute of Westminster, 1931.
    law. 1763: English public law
                                               Development of common law courts
     PEI: 1763                                 and courts of equity
     Ontario: 1792                            Preamble to BNA Act: implied Bill
     Newfoundland: 1832                        of Rights
     BC: 1858                                 Barristers and Solicitors
                                               Judicial Committee of the Privy
     Man, Alta., Sask: 1870.
                                                Council (JCPC); 1949
                                               England: specialized appeal j's;
                                                Canada: generalist appeal j's.
                                                        ____________________________
    federal appointments                                |    Supreme Court of Canada           |
     and administration                                 |                9 judges              |
                                                         |___________________________|
                                         _____________________|                          |
                                ____|___ ____|____              ________________|________
                        federal |           | |           |     |                                 | federal
                 appointments | Tax | | Federal |                | 10 provincial & 3 territorial | appointments,
                     & admin. | Court | | Court           |       |       courts of appeal         | provincial
                                  | 27 js | | 47 js       |       |         128 judges             | administration
                                  |______| |________|             |_______________________ |
                                                                      |              |
                                                 _____________ |______               |
                                      federal    |                             |     |
                               appointments | provincial superior              |     |
                                  provincial     | trial courts                 |     |
                             administration | 829 judges                        |     |
                                                   |__________________ |               |
                                                       |___________________|
                                                       |
                                                       |
                                                       |
                                       ___________ |__________
                                       |                               |     (All counts as of 2001)
                      provincial | pure provincial and                  |
                     appointments | territorial courts                  |
                        & admin. |           984 judges                 |
                                       |______________________|
 Reference questions (SCC and provincial courts of appeal)
 common law
    stare decisis
    adversary system
 Superior court judges travel on circuits to visit smaller centres
 Why don’t judges have to retire until 70 or 75?
 County and District courts now merged with superior courts
 judicial independence: purpose to promote judicial impartiality
    Valente decision (1985)
       security of tenure
       financial security
       judicial control over adjudicative matters
 judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. -
  Hryciuk)
 Judicial positivism (John Austin, A.V. Dicey, H.L.A. Hart)
      The only law that exists is the written law
      Good judges can always interpret the positive law correctly
 Natural law (John Locke, John Rawls, Ronald Dworkin)
      There are “higher” laws that positive law ought to emulate. These higher laws might
       be created by religion, logic, or ethical principles.
 Judicial realism (Karl Llewellyn)
    Even if judges try to be impartial, the law can never be perfectly clear. What makes
     judges decide the way they do?
    Canadian Judicial realism: Sidney Peck, Peter Russell, many current scholars.

 Critical Legal Theory
   a branch of “critical theory,” which examines institutions from the
     perspective of class analysis.
 Trial Courts:                          Appeal courts:
                                            Panel process different
 Improvisors (~10%)
    no single process, but for most     Supreme Court of Canada
     outcomes would be the same             a public law court (~100)
 Strict Formalists (~ 20%)                 leave to appeal (~600 apps)
    particular process followed, and    Problems with justice system
     always leads to the same               for some litigants and lawyers, a
     conclusion.                             game
                                            delay in client’s interest (nearly half
 Pragmatic formalists (~45%)                of trial lawyers)
    particular process followed            judges limited by adversary system re
     (check list, shifting balance,          control of caseflow
     water rising), but judges might
                                         Role of courts: dispute resolution,
     decide differently.
                                          prevent abuse of power, official
 Intuitivists (~25%)                     constitutional philosophers, pawns in
    “gut feeling”                        other peoples’ battles
 Minor appeals heard by a single judge in a higher court
    (summary conviction appeals)
   Major appeals heard by the provincial Court of Appeal
   Ontario has about 18 Court of Appeal judges; usually they
    sit in panels of 3 (sometimes 5)
   The Federal Court (Appeal Division) has about a dozen
    judges; hear cases in panels of 3.
   Supreme Court (9 judges) most often hears cases in panels
    of 7; sometimes panels of 5 or 9.
   per curiam (or per coram) vs. seriatim decisions
 Stare decisis: a rigid form       Hierarchy of courts
  of doctrine of precedent           determining application
 Ways around stare decisis:         of stare decisis
   Distinguish
                                    SCC can choose not to
   Ratio is really obiter
   Per incuriam
                                     follow precedent. Ont
   Emphasize different majority
                                     CA: policy: follow
    opinion                         What if conflicting
   ignore
                                     precedents?
•    Legislation:
     –   primary legislation (enacted by a sovereign legislature, i.e. Parliament or provincial
         legislature)
     –   subordinate legislation (eg. Orders in Council, city bylaws, CRTC regulations)
     –   Both are law; subordinate must be clearly authorized by primary
•    Manner and form requirements for judges to recognize a law

• Canada’s constitution:

• 1. Written parts
     a) Canada Act, 1982 (British statute that makes CA, 1982 law and declares
       that no British statute will in future extend to Canada)
     b) S. 52 CA 1982: ~30 statutes and orders listed in the schedule to the
        Schedule to the Const. Act, 1982, most importantly the Constitution Act,
        1867 (formerly called the BNA Act; contains division of powers), and the
        Constitution Act, 1982 (contains the Charter and the five amending
        formulas)
          - Others: statutes & orders established new provinces, or amended
    the BNA Act.
 You need to know the following parts for career purposes (most of the
    following in my own words)
   CONSTITUTION ACT, 1867
   Ss. 56, 57 & 90: reservation and disallowance
   91. the "preamble" to S.91 is the "POGG" clause (peace, order and good
    government): It shall be lawful for [Parliament] to make laws for the
    peace, order and good government of Canada, in relation to all matters
    NOT coming within the subject-matters assigned exclusively to the
    Provinces in S. 92. For greater certainty, Parliament may make laws with
    regard to matters covered by the following list. However, this list merely
    provides examples, and these examples are not to be interpreted by
    courts as limiting Parliament's power.
    2. Trade and Commerce
    2A. Unemployment insurance (added in 1940)
    3. Unlimited taxing powers (direct and indirect)
    14. Currency & coinage
    15. Banking
    24. Indians, and lands reserved for Indians
    27. The Criminal Law
 92 - 2. Direct taxation
      10. Local works and undertakings EXCEPT
       a) interprovincial railways & telegraphs
       b) international shipping
       c) any works that Parliament has declared are
       within federal jurisdiction. (“declaratory power”): eg. Grain elevators,
  local railways, canals, bridges, some mines, some factories. Used 470 times, but
  not since 1961.
    13. Property and civil rights (meaning private law)
    14. The administration of justice in the province, including
    the establishment of all courts except the Supreme
    Court of Canada and the Federal Court, and prosecution of criminal
  cases.
    16. All matters of a merely local or private nature.
  92A (added in 1982). The provinces can regulate non-renewable natural
  resources, including forestry and electrical energy, and can even regulate
  exports. However, the federal government can also regulate exports in this
  area, and federal laws are paramount.
 93. The provinces control education, except
  that the feds can intervene to protect Roman
  Catholic schools in Ontario and separate schools
  in any province that existed at the time the
  province entered Confederation.
 95. Agriculture and Immigration are
  concurrent powers (both the feds and the
  provinces can legislate). If there is a conflict, the
  federal legislation is paramount.
 96. The federal cabinet has the power to appoint all
  superior court judges in the provinces.
 99. Superior court judges cannot be removed except
  by joint address of the Senate and House of
  Commons. Superior court judges hold office "during good
  behaviour" to the retirement age of 75 (to protect judicial
  independence).
 100. The salaries of superior court judges are set by
  Parliament, not by the cabinet (to protect judicial
  independence).
 101. Parliament may establish a Supreme Court of Canada
  (which it did in 1875) and other courts to adjudicate federal
  laws other than the Criminal Code (eg. the Federal Court,
  which hears federal administrative law cases, and the Tax
  Court.)
• 109. The provinces own the natural resources within
  them.
• 121. There shall be no customs duties or restrictions of
  trade between provinces.
• 132. Parliament can make any law to implement British
  Empire treaties, even if the law invades provincial
  jurisdiction. However, after 1931 the courts interpreted this
  section to mean that provincial approval is required for any
  non-British Empire treaty which affects matters under
  provincial control.
• 133. English and French can be used in Parliament, and
  Canada's laws must be in both languages. Likewise, English
  or French may be used in Quebec's National Assembly, and
  Quebec's laws must be in both languages. Either language
  may be used in the courts of Quebec, the Supreme Court of
  Canada, the Federal Court and the Tax Court.
 Ss 1-34: The Charter of Rights (you don’t need to
  know the content of the Charter until November
  class)
 S. 35: Aboriginal rights
 S. 36: commitment to equalization payments, so
  that poorer provices can provide adequate
  services.
 1867: Canada independent re its internal affairs
 Balfour Declaration (1926) and Statute of Westminster
  (1931): Canada recognized as an independent state re
  foreign relations
 BNA Act (1867) was an imperial statute, therefore could
  only be amended by British Parliament. 1926-1981: many
  failed constitutional conferences.
 Victoria Charter nearly successful (1971): Amending
  formula would include Parliament, Ontario, Quebec, 2/4
  Western provinces, 2/4 Atlantic provinces. Failed when a
  new gov’t elected in Alberta, and Quebec premier couldn’t
  get cabinet to agree.
 Alberta suggested an alternative: Parliament, and 2/3 of
  provinces representing 50% of Canadian population.
 In Canada, there are 5 amending        Fed gov’t can amend its internal
  formulas for the constitution:          constitution
    Unanimity formula (Queen, GG,       General amending formula
     LGs, composition of SCC, senate      (seven-fifty): the rest of the
     floor rule, federal language         constitution (incl div of powers
     rights, amending formulas            & Charter) can be amended with
    “some but not all” (eg. language
                                          Parliament, 7 out of 10 provinces
     within province,
                                          representing 50% of pop.
     denominational school rights,
     change in prov. borders)             Dissenting provinces may opt
    Provinces can amend own
                                          out, and get reasonable
     constitutions                        compensation if amendment
                                          affects culture or education.
 38-40 & 42. The 7-50 formula. Most of the narrow constitution,
  including the Charter of Rights and the division of powers in ss. 91 and
  92 of the C.A., 1867, can be amended with the agreement of seven
  provinces representing 50% of Canada's population and
  Parliament. (That is, either Ontario or Quebec must be included.) Up
  to 3 provinces could opt out of such an amendment. If they opt out of an
  amendment which transfers educational or cultural matters to Ottawa,
  these provinces shall be compensated financially by Ottawa (Ottawa
  must give to the opting-out provinces what they are spending, per capita,
  on the opting-in provinces).

 There is a 3-year time limit which begins with the first resolution for
  amendment (which could be in any provincial legislature or
  Parliament). No amendment may take effect according to this
  procedure until at least one year after the first resolution has passed
  (unless all governments have passed resolutions).
 No province can opt out of an amendment
    affecting:
   - proportionate representation of the provinces in
    the House of Commons
   -the Senate
   -the Supreme Court of Canada
   -the extension of existing provinces north
   -establishment of new provinces
 41. The unanimity formula. Unanimous agreement of all
  provincial legislatures and Parliament is required for
  amendments affecting:
 a) the Queen, Governor General and Lieutenant-Governors
  b) the "Senate floor rule" (no province can have fewer MPs than
  Senators).
  c) the use of English or French in S. 133 or the Charter
  d) the composition of the Supreme Court, and
  e) changes to the amending formulas.

 43. The "some but not all" forumla: Amendments which affect
  some but not all provinces need by approved only by the
  provincial legislatures affected and Parliament.
 44. Parliament may amend parts of the constitution that affect
  only Parliament.
 45. Legislatures may amend parts of their constitutions that
  affect only them.
 U.S.: Congress proposes                     Major Can. amendments:
  amendments (2/3 of both houses)               1940: unempl ins
 Proposals have to be ratified by ¾ of         1951: old age pensions
  state legislatures, or ¾ of state             1964: old age pensions broadened to
  constitutional conventions                      include supplementary, survivors,
                                                  disability (CPP)
 Comparison:                                   1982: Charter and amending
    U.S. constitution amended 17 times           formulas
     in 21 decades (rate .08/year)              1983: S. 35.1: must be a
    Canadian constitution amended 32             constitutional conf including native
     times in 13 decades (.23 to 1982, and        peoples before native rights
     9 after) (rate .24/year)                     amended
    Canada’s constitution is more              1987-1998: 3 amendments to den
     flexible                                     school rts in Nfld
                                                1997: den school rts Quebec
                                                1993: equality of Fr & Eng in New
                                                  Brunswick
 Canada                                 U.S.: 6 amendments proposed by
    1927-1982: six failed attempts       Congress but not ratified by states,
                                          including ERA (equal treatment of
     to find a domestic amending
                                          women in all legislation)
     formula
                                         Impact of court decisions:
        1971 – Victoria charter came
         close                              1940, 1951 amendments in Canada a
                                             reaction to court decisions
        1982: success achieved after
                                            Civil war amendments in U.S. a
         SCC decision (discussed             reaction to court decisions
         later in course)                   1918: SCUS decision led to
    Meech Lake & Charlottetown              amendment to prohibit child labour.
     Accords (discussed later)               1938: Roosevelt threatened to “pack”
                                             court. Court overruled 1918
                                             decision.
 United States                         Canada
    Washington: cabinet advisory &        Feds assume they have power to do
     responsible to president               something under POGG, or
                                            provinces assume they have power to
    Jefferson: declared that U.S.          do something under 92(13)
     could purchase new territory;         After 1995, fed legislation passed to
     never challenged in court              prevent cabinet ministers from
    Political parties developed            proposing amendments under 7-50
     without constitutional                 without support of Quebec, Ont,
     amendment                              B.C., 2/3 prairie provinces, 2/4
                                            Atlantic; Quebec recognized as
    Congress assumed vast powers           distinct society
     over economy in 1930s and 1940s       Clarity Act (2000)
                                        Was Dicey right that in the U.S.,
                                         judges are supreme because they
                                         declare the constitution? Does
                                         Dicey’s analysis apply to Canada?
1. Constitutional conventions
      -Rule of law
      -Judicial independence
      -Responsible government
        -cabinet responsible to the legislature
        -Ministerial accountability
        -Cabinet solidarity
       -Gov Gen and Lieut Gov’s must act according to the advice of the
first minister, unless that advice is unconstitutional
      -The leader of the group in H of C or prov leg that can command
the support of the majority of members becomes first minister and
chooses cabinet. First minister tells GG or LG when to call election,
unless another group can form gov’t

2. The ratio in the judicial decisions about the meaning of the
constitution (eg. the ratio in the cases we’ll be studying in this course)
• Codification of laws                       Quebec courts:
  – Coutume de Paris (1580)
  – Confusion after 1759                       Court of Appeal (s.96)
  – Royal Proclamation (1763) – civil law
    abolished                                  Superior Court (s.96)
  – Quebec Act 1774 – civil law restored
    for private law                            Court of Quebec
  – Codification: 1866: Civil Code of
    Lower Canada (CCLC)
                                                (provincial – s. 92(14))
  – 1994: Civil Code of Quebec (CCQ)           Civil and common law
  Deductive Reasoning                           approaches coming
  Inquisitorial System (not
    in Quebec)                                  closer together
  Code, la doctrine,
    precedent
Natural Justice & Fairness
   Natural Justice                 Judicial review
    – Nemo judex in sua              – Jurisdictional
      causa                          – Abuse of power
    – Audi alteram partem            – Natural justice
   Functions of Admin.                  • Jud or quasi-jud
    Agencies:                        – Doctrine of fairness
    –   Legislative                 Privative clauses
    –   Administrative               – Can’t hide behind priv
    –   Executive                      clause if const issue, or
    –   Judicial or quasi-jud.         patently unreasonable
Rules of Statutory Interpretation (1)
   Why are rules                  Specific words help
    needed?                         explain general ones
   Intent of legislature           nearby
                                   Express inclusion of some
   “reasonable person”
                                    items implies exclusion of
    test
                                    items not mentioned
   1.Plain meaning rule           Aids:
   2.“golden rule”: avoid          – Interpretation statutes
    absurdity & inconsistency
                                    – Definition sections of
   3.What was the                    statutes
    mischief & remedy?
Rules of Statutory Interpretation (2)
   More Aids:                     International
     – Context in statute           conventions & treaties
     – Other similar statutes       (sometimes)
     – Legislative history         Preamble (but not
         • Minimal weight. Why?     marginal notes)
   Books on rules of              Headings (except in
    interpretation, & legal
    dictionaries                    Ontario – excluded by
   French & English text           statute)
Presumptions
   Criminal law: in favour of      Against ousting
    accused                          jurisdiction of courts
   Taxation law: in favour of      For crown immunity (now
                                     mostly replaced by statutes
    taxpayer                         allowing suits against crown)
   Against alteration of           Every word is deliberate
    common law                      Specific given precedence
   Mens rea (guilty mind),          over general
    unless express absolute         More recent > older
    liability                       Leg. did not intend
   Against retroactivity            drafting error (cts can
                                     correct)
 1. optimal freedom
      J.S. Mill: “harm” principle for limits
  2. procedural fairness when there are limits
  3. equality of application of rights and freedoms
 Limits to rights:
  -some differences in ability (eg. qualifications for driver's
  license, or to become a doctor)
  -promote honesty (eg. limits to freedom of speech: suits
  for defamation)
  -need to preserve public order
  -to deal with emergencies
  -resolve conflicts of rights
  -community-wide restrictions on moral behaviour (eg
  pornography)
 Political theory of liberalism                   common law protections for
                                                       individual freedom:
    European Renaissance of 15th
                                                        strict attention to rule of law:
     century                                               Entick v. Carrington 1765
    Protestant reformation                               mens rea
    Glorious Revolution (England:                        crown must prove case beyond
                                                           reasonable doubt
     1688)
                                                          free confessions
    John Locke: Second Treatise on                       can’t be forced to self-incriminate
     Gov’t 1690                                           prerogative writs (habeas corpus)
        rule of law “one rule for the
                                             Development of democratic
         Rich and Poor, for the Favourite
         at Court and the Country Man         values
         at Plough”                            growth of franchise
        judicial indepencence
 U.S. Bill of Rights                       freedom of speech, press,
                                             assembly & religion
    Jefferson (declaration of
                                            procedural rights: no
      independence): “…all men are
                                             unreasonable search or seizure,
      created equal [and] endowed by         right not to testify against self,
      their Creator with certain             can’t be punished twice for same
      unalienable rights [including]         offence, due process safeguards,
      Life, Liberty and the pursuit of       no cruel or unusual punishment
     Happiness.” (1776)                     positive legal rights: speedy
                                             trial, jury trial for serious cases,
    To get 1787 constitution ratified,
                                             reasonable bail, to bear arms,
     state leaders insisted on a Bill of     and to refuse accommodation to
     Rights; added in 1789 as first 10       soldiers
     amendments to 1787
      constitution:
 Canada’s bilingual and                     Legislative Supremacy
  bireligious heritage                          Preamble to BNA Act: Canada’s
    demands in 1864 for guarantees              constitution “similar in
     of minority language and                    principle” to that of the U.K.
     minority religious education               legislative supremacy one aspect
     rights prior to Confederation in            of U.K. constitution: seems to
     1867                                        contradict idea of a
    “small bill of rights”:                     constitutional bill of rights
        S. 133 of BNA Act: Eng or Fr in        A.V. Dicey: Introduction to the
         Parl, Quebec leg., and Can & fed        Study of the Law of the
         courts; similar guarantees in           Constitution (1885)
         Manitoba in 1870, & AB and                 human rights protected by
         Sask in 1905                                common law
        S. 93: safeguards existing
                                                    written constitution is too rigid;
         denominational school rights                trust legislature
 B.C.: disc leg against Orientals     “Persons” case: 1930
    1899: JCPC stuck down law         Alberta Press Case (1938)
     restricting employment of            impugned: package of Social
     Orientals as ultra vires prov.        Credit legislation: unanimously
     Jurisdiction                          struck down
    1902: JCPC upheld denial of
                                          “Duff doctrine”: because Can.
     vote to Orientals - leg sup           const is “similar in principle” to
 Private suits by Blacks against          that of U.K., courts can strike
  pte disc: some succeeded, most           down legislation violating trad.
  didn’t because cts emphasized            human rights. Also, Canada is a
  private right to contract                democracy: H of C is
                                           representative. “Free public
 Sask: disc leg ag Orientals:             discussion … is the breath of life
  upheld by SCC, 1914                      for parliamentary institutions”
 Treatment of Japanese                 Switzman v. Elbling, 1957: SCC
  Canadians during WWII: courts          struck down Padlock Law
  did not intervene                      because it trenched on Parl’s
                                         crim law jurisdiction
 “Gouzenko affair” in 1945: secret
                                        Roncarelli v. Duplessis, 1959:
  trials of 26 under War Measures        Roncarelli posted bail for JWs,
  Act without usual procedural           and Duplessis cancelled his
  protections. Led to Can Civ            restaurant liquor license. (will
  Liberties Association                  discuss in more detail in
 Duplessis era: SCC used division       October class)
  of powers to protect human
  rights
    Saumur, 1953: SCC struck down
     Que City bylaw about littering,
     but aimed at Jehovah’s
     Witnesses
 Spearheaded by PM John                   S. 2: lists traditional common
  Diefenbaker, and enacted in               law legal rights: habeas corpus,
  1960                                      no arbitrary detention or
                                            imprisonment, no cruel or unusual
 S. 1: rights to life, liberty, sec of
                                            punishment, no arrest without
  person, enjoyment of property,            lawful reason, right to retain lawyer
  equality before law, freedom of           without delay, right not to be forced
  religion, speech, assembly,               to incriminate self, innocent until
  association and press have                proven guilty, ind and imp tribunal,
  existed and continue to exist             reasonable bail, interpreter. Right
  without discrimination by                 to a fair hearing in accord with
  reason of race, national origin,          fundamental justice to determine
  colour, religion or sex                   rights and obligations.
                                           “notwithstanding clause”
 Robertson & Rosetanni v. the          Cartwright dissented: both
  Queen (1963)                           purpose & effect of Act compel,
    impugned: fed. Lord’s Day Act
                                         under penal sanction,
                                         observance of a particular
    Ritchie (for majority): Freedom
                                         religious holy day
     of religion “has existed;”
                                        Courts can strike down laws
     therefore no violation
                                         under Bill of Rights; otherwise
    Fr of Rel means an absence of
                                         the “notwithstanding” clause
     disabilities, but govt’s can
                                         would not be necessary
     promote religious practices
    Although Act as a religious
     purpose, the effect is purely
     secular
 Drybones (1970)                         Ritchie adopts Cartwright’s
    impugned: section of Indian           reasoning from Rosetanni that
     Act that made it an offence for       notwithstanding clause means
     an Indian to be intoxicated off a     Bill of Rights is more than a rule
     reservation. No reservations in       of construction.
     NWT.                                 Cartwright dissented. Said he’d
    Drybones claimed equality             changed his mind since
     before the law violated               Rosetanni. It would be
    Ritchie (for majority): Where it
                                           dangerous for the courts to
     is “an offence…on account of          usurp legislature’s role by
     race…to do something which all        deciding what statutes violate
     Canadians who are not members         Bill of Rights.
     of that race may do…” there is a
     violation of equality.
 Lavell & Bedard (1974)                       If all Indian women are treated
    impugned: part of Indian Act                equally, there’s no necessary
     that states that if an Indian man           discrimination. (Indian women
     marries a non-Indian, he retains            aren’t compelled by law to marry
     status and his children inherit it,         non-Indians).
     but if an Indian woman marries         Bliss (1979):
     a non-Indian, she forfeits her            impugned: part of Un Ins Act
     status, as do her children.                 that stipulated longer qualifying
    Ritchie for majority (5-4):                 period for work absence due to
     equality before the law,                    pregnancy. SCC: no
     according to Dicey, means                   discrimination, as the provision
     equality in the administration of           applies to everyone.
     the law.
 Oil, Chem and Atomic Workers           Beetz: Demonstrations are not
  case (1963): SCC says it’s OK for       “speech in action,” therefore no
  BC gov’t to prohibit union              violation of freedom of speech
  political contributions if             Beetz dismissed the Duff
  received from check-off.                Doctrine
                                         Laskin: strong dissent
 1969: SCC upholds Alberta
  discriminatory legislation           SCC’s record under Bill
  against Hutterites                   of Rights led to support
 Dupond (1978): SCC upholds a         for idea of a
  Montreal by-law that allowed
  Council to ban all
                                       constitutional Charter of
  demonstrations for 30-day            Rights
  periods.
 October class: seven important Division of Powers
  cases decided by the Judicial Committee of the Privy
  Council or the Supreme Court of Canada, & Roncarelli
  v. Duplessis
 November class: 13 important Charter of Rights cases
  decided by the Supreme Court of Canada

								
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