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Constitutional Law - DOC by linzhengnd



                     LAW 100.02
              Canadian Constitutional Law
            Tuesday & Thursday 2:oo-3:30 p.m.
                                                                   Shigenori Matsui
                                   Professor of Law, University of British Columbia
                                                    West Mall Swing Space Building
                                      5th floor, 2175 West Mall, Vancouver V6T 1Z4
                                                              Phone 604-822-5592

XVI Aboriginal Peoples and the Constitution CLG 511-630, H 615-675, REG 603-
     Sources of aboriginal rights and aboriginal title
            St. Catherine’s Milling and Lumber Co. v. The Queen (1888)
            Calder v. British Columbia [1973]
            Guerin v. The Queen [1984]
     Power of federal Parliament
     Power of provincial legislatures
            Delgamuukw v. British Columbia [1997]
            R. v. Dick [1985]
            Kitkatla Band v. British Columbia [2002]
            R. v. Morris [2006]
     Aboriginal self-government power?
            R. v. Pamajewon [1996]
            Mitchell v. MNR [2001]
     What are the aboriginal rights?
            R. v. Van der Peet [1996]
     Restriction of aboriginal rights
            R. v. Sparrow [1990]
            R. v. NTC Smokehouse [1996]
            R. v. Gladstone [1996]
            R. v. Sappier [2006]
     Aboriginal Title
            Guerin v. The Queen [1984]
            R. v. Adams [1996]
            Delgamuukw v. British Columbia [1997]
            R. v. Marshall [2005]
     Treaty Rights
            R. v. Marshall [1999]
            R. v. Marshall II [1999]
     Duty to Consult

       Haida Nation v. British Columbia [2004]
       Taku River Tlingit Nation v. British Columbia [2004]
       Miskisew Cree Fist Nation v. Canada [2005]
Metis rights
       R. v. Powley [2003]

I Protection of Individual Rights in Canada CLG 633-736, H 699-774, REG 733-96
       Common Law Background
              Roncarelli v. Duplessis [1959
              Union Colliery Co. v. Bryden (18990
              Cunningham v. Tomey Homma (1903)
              Quong Wing v. The King (1914)
              Co-Operative Committee on Japanese Canadian v. AG Canada
       Implied Bill of Rights
              Reference re Alberta Statutes [1938]
              Saumur v. Quebec [1953]
              Switzman v. Elbling [1957]
              Dupond v. City of Montreal [1978]
       Canadian Bill of Rights

II Infringement and Justification CLG 737- 75, H 817-868, REG 837-61
       Interpretation of Charter: necessity of purposive interpretation
               Hunter v. Southham Inc.[1984]
               R. v. Big M Drug Mart Ltd.[1985]
       Charter interpretation and legitimacy of judicial review
               Reference re B.C. Motor Vehicle Act [1985]
       Justification of the Infringement: Prescribed by Law
               R. v. Therens [1985]
               R. v. Nova Scotia Pharmaceutical Society[1992]
               Osborne v. Canada [1991]
               R. v. Oak [1986]
               Necessity of contextual analysis
               Edmonton Journal v. Alberta [1989]
               R. v. Lucas [1998]
               Deference to legislature
               Irwin Toy Ltd. v. Quebec [1989]
               Thomson Newspapers Co. v. Canada [1998]
               Pressing and substantial government objectives
               R. v. Big M. Drug Mart [1985]
               Rational connection
               R. v. Oak
               Minimal impairment
               Thomson Newspapers Co. v. Canada [1998]
               Final balance
               Dagenais v. CBC [1994]
               R. v. Sharpe [2001]

III Application of the Charter CLG 737-815, H 775-815, REG 797-836
      Everyone, every individual, and every citizen of Canada
             Canadian citizen
             Dead person

              Permanent resident non-citizen

      Application of the Charter
             General principle
             Retail, Wholesale and Department Store Union Local 580 v.
Dolphin Delivery Ltd [1986]
             Part of the Government
             McKinney v. University of Guelph [1990]
             Harrison v. University of British Columbia [1990]
             Vancouver General Hospital
             Stoffman v. Vancouver general Hospital [1990]
             Douglas/Kwantlen Faculty Association v. Douglas College
             Public transportation agencies
             Greater Vancouver Transportation Authority v. Canadian
Federation of Students [2009]

                Government Function
                Goodbout v. Longeuil [1997]
                Black and Co. v. Law Society of Alberta [1989]
                Funding for medical services
                Eldridge v. British Columbia [1997]
                Labor adjudication
                Slaight Communications Inc. v. Davidson [1989]
                Human rights commission
                Blencoe v. British Columbia [2000]
        Government Inaction
                Vriend v. Alberta [1998]
        Positive Obligation
                Dunmore v. Ontario [2001]
        Charter application to common law
                Charter applies to injunction issued on its own motion under common law
                BCGEU v. British Columbia [1988]
                Charter values mist be respected in a civil litigation between private
parties under common law
                Hill v. Church of Scientology of Toronto [1995]
                RWDSU. Local 558 v. Pepsi-Cola Canada Beverages :td [2002]

IV Freedom of Conscience and Religion CLG 817-892, H 959-976, REG 863-923
      Sunday Observance Law
              R. v. Big M Drug Mart Ltd. [1985]
              Edwards Books and Art Ltd. v. The Queen [1986]
              Islamic Schools federation of Ontario v. Ottawa Board of
Education [1997](On. Div. Ct.)
      Justified or Unjustified Infringement?
              What is religion?
              Syndicat Northwest v. Amselem [2004]
              What is an infringement?

              Setting up succahs on the balcony
              Ban on wearing kirpan in school
              Multani v. Commission scholarire Marguerite-Bourgeoys
               Photograph requirement for driver’s license
               Alberta v. Hutterian Brethren of Wilson Colony [2009]
               Less worthy religion?
               Ross v. New Brunswick School District Co. 15 [1996]
               Ban on polygamy?
               Refusal of blood transfusion for a child
               R. v. Children’s Aid Society of Metropolitan Toronto [1995]
               A.C. v. Manitoba [2009]
        Religion in Schools
               Player and bible reading
               Zlyberberg v. Sundbury Board of Education (1988)(On. CA)
               Religious education by clergymen
               Canadian Civil Liberties Association v. Ontario (1990(On CA)
               Exclusion of supplementary resource materials based on religious concern
               Chamberlain v. Surrey School District No 36 [2002]
               Compulsory education and requirement for provincial approval for
private school
               R. v. Jones
               Government support for religious school
               Ontario’s public Catholic high school
               Reference re Bill 30 to amend the Education Act (On) [1987]
               Ontario’s refusal to provide funding to other religious schools
               Adler v. Ontario [1996]
               Ban on Islamic scarf in school?

IV Freedom of Expression: General Framework CLG 893-1029, H 977-1043,
REG 924-1005, 1257-65
      Purpose of Freedom of Expression
            R. v. Keegstra [1990]
            Ford v. Quebec [1988]
            Retail, Wholesale and Department Stores union, Local 580 v.
Dolphin Delivery Ltd.[1986]
      The Definition of Freedom of Expression
            Irwin Toy Ltd v. Quebec [1989]
            Use of language
            Ford v. Quebec [1988]
            Hate speech
            R. v. Keegstra [1995]
            Child pornography
            R. v. Sharpe [2001]
            Commercial expression
            Ford v. Quebec [1988]
            Retail, Wholesale and Department Stores union, Local 580 v.
Dolphin Delivery Ltd.[1986]

            Retail, Wholesale and Department Store Union, Local 558 v.
Pepsi-Cola Canada Beverages (West) Ltd. [2002]

      What is an infringement?
             Irwin Toy Ltd v. Quebec [1989]

              Need for contextual analysis
              Irwin Toy Ltd v. Quebec [1989]
              Nature of right involved
              R. v. Lucas [1998]
              Deference: modern formulation
              Thomson Newspapers Co. v. Canada [1998]
              Application of Oak test
              Thomson Newspapers Co. v. Canada [1998]

      Political Expression
              Ban on false news
              R. v. Zundel [1992]
              Ban on publication of poll during final three days before election
              Thomson Newspaper Co. v. Canada [1998]
              Ban on early publication of election result
              R. v. Bryan [2007]
      Election Campaign regulation
              Libman v. Quebec [1997]
              Harper v. Canada [2004]
              Reference re. ss. 193 and 195.1(10 of the Criminal Code (Man)
[1990] (Prostitution Solicitation Reference).
      Contempt of Court
              BCGEU v. BC [1988]
              Dagenais v. CBC [1994]

IV Freedom of Expression: Defamation, Hate Speech, and Pornography
             Hill v. Church of Scientology of Toronto [1995]
             R. v. Lucas [1998]
             Grant v. Torstar Corp [2009]
      Invasion of privacy
             Aubry v. Editions Vice Versa Inc. [1998]
      Hate Speech
             R. v. Keegstra [1990]
             R. v. Andrews [1990]
             Canada (Human rights Commission) v. Taylor [1990]
             R. v. Butler[1992]
             R. v. Labaye [2005]
             Little Sisters Book and Art Emporium v. Canada [2000]
             R. v. Sharpe [2001]

IV Freedom of Expression: Commercial Expression
      Commercial Expression
           Irwin Toy Ltd v. Quebec [1989]
           RJR-MacDonald v. Canada [1995]
           Canada v. JTI-MacDonald Corp [2007]

VII Equality Right CLG 1133-1220, H 1173-1264, REG 1161-1243
      What is equality?
              Andrews v. Law Society of British Columbia [1989]
      What is the appropriate framework?
              Andrews v. Law Society of British Columbia [1989]
              Law v. Canada
              R. v. Kapp [2008]
      First Criteria: Purposeful discrimination and discrimination in effect
              Eldridge v. British Columbia [1997]
              Vriend v. Alberta [1998]
      Second Criteria: analogous grounds
              Eagan v. Canada [1995]
              Miron v. Trudel [1995]
              Corbiere v. Canada [1999]
              What is an appropriate comparator group?
              Hodge v. Canada
      Third Criteria: Discrimination
              M.v. H. [1999]
      s. 15(2) and s. 15(1)
              R. v. Kapp [2008]


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