Impact Of The Charter

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  • 1. March 31, 2006 Last class
    • Today: Impact of the Charter (continued from last week)
    • Review for final exam
    • Please fill out electronic course evaluation:
    • http://courseevaluations.yorku.ca
  • 2. Impact of Charter
    • To what extent has the Charter promoted the democratic values of inclusiveness and participation ?
    • Inclusiveness :
      • Singh (1985): refugee applicants have a right to a fair hearing.
      • Andrews (1989): recent immigrants can become lawyers more quickly than in the past.
      • Schachter (1992): fathers have a right to be included in parental leave legislation.
      • Rodrigues (1993): promotes right to live of the severely disabled.
      • Eldridge (1997): deaf have a right to interpreters in health serviced.
      • Sauvé (2002): prisoners have a right to vote.
      • Charter has resulted in removal of barriers in voting for mentally handicapped, students; legislation to limit election spending (including 3 rd party) upheld.
  • 3. Participation
    • “ Duff Doctrine” adopted by majority of SCC in 1987 in OPSEU case
    • Morgentaler (1988 ): struck down abortion legislation because of cumbersome procedures. Has this promoted greater participation in Canadian society by women, or inadvertently restricted it (Gavigan)?
    • RJR‑MacDonald (1995): tobacco advertising legislation struck down. Too anti-majoritarian, or sensible defence against too much gov’t intervention?
    • Mills (1999): SCC defers to Parliament’s balance between a fair trial and right to privacy.
  • 4. Both inclusiveness & participation
    • Big M (1985): inclusiveness of non-mainstream religious groups promoted.
    • Edwards (1986): supported legislature’s ability to devise secular holiday
    • Keegstra [1990]: support for hate speech law promoted inclusiveness for vulnerable groups, and upheld Parl’s legislation.
    • Zundel [1992]: striking down “spreading false news” promoted inclusiveness even for groups most of us despise.
    • Butler [1992]: “community standards” test for pronography supports participation. Prohibiting sex/violence promotes incusiveness of vulnerable groups
    • Sharpe [2001]: Even those we despise don’t deserve to be subjected to over-broad legislation.
  • 5. Both inclusiveness & participation (2)
    • Symes [1993] and Thibaudeau [1995]: did not promote inclusiveness for women, but supported Parliament’s judgment about taxation systems affecting women.
    • re Secession of Quebec, [1998] : promoted participation through mandating a negotiation process. Deferred to political process re definition of “clear question” and “clear majority.”
    • Other cases to be discussed next week, along with final review of course.
  • 6. Both inclusiveness & participation (3)
    • Vriend [1998], M. v. H. [1999], and Halpern [2003]
      • promoted inclusiveness for gays and lesbians in many pieces of legislation, and encouraged greater participation in the political system of these groups.
    • Ref re Electoral Boundaries (Sask), [1991]
      • allowed a 25% difference between the average constituency population, and a rural (smaller) and urban (larger) const. Population. Promotes inclusiveness for rural voters, but what about urban voters? Eg. of deference to legislature.
  • 7. Native Rights Cases (inclusiveness and participation)
    • Sparrow (1990)
    • Delgamuukw (1997)
    • Marshall 1 & 2 (1999)
    • Powley (2001)
    • Haida Nation v. B.C. (2004)
      • all these decisions promoted greater respect for native peoples and their heritage, and therefore promoted higher levels of inclusiveness for native peoples in Canadian society, and participation in negotiating land claims, and hunting/fishing regulations.
  • 8. What’s your evaluation?
    • To what extent has judicial interpretation of the Charter and the native rights sections of the Constitution Act, 1982, promoted the democratic goals of inclusiveness and participation? Should the courts have gone further in some areas? Did they go to far in some areas?
  • 9. Exam
    • Essay question: Write a short essay on one of the following eight topics. The essay should be a maximum of four pages long (if single-spaced and you write 5 words per line; adjust according to your writing).
    • You will be graded according to the following rubric:
    • a) The extent to which you have developed an effective argument and have pursued it in a clear and well-organized fashion.
    • b) The extent to which you have demonstrated that you have read and understood the course materials relevant to your essay, and that you can analyze them carefully.
  • 10. Objective Questions from Cases
    • Know what’s important about these cases
    • 1. Alberta Press Bill reference (1938)
    • 2. Saumur v. Quebec (1953)
    • 3. Switzman v. Elbling & A.G. Quebec (1957)
    • 4. Roncarelli v. Duplessis (1959)
    • 5. Robertson & Rosetanni v. The Queen (1963)
    • 6. Regina v. Drybones (1970)
    • 7. Calder (1973)
    • 8. A.G. Canada v. Lavell and Bédard (1974)
    • 9. A.G. Canada & Dupond v. Montreal (1978)
    • 10. Hunter v. Southam (1984)
    • 11. Operation Dismantle Inc. v. the Queen (1985)
    • 12. The Queen v. Big M Drug Mart Ltd. (1985)
    • 13. Singh v. Minister of Employment and Immigration (1985)
    • 14. Reference re B.C. Motor Vehicle Act (1985)
    • 15. Valente v. The Queen (1985)
    • 16. R. v. Therens (1985)
    • 17. Edwards Book and Art Ltd. v. the Queen (1986)
    • 18. The Queen v. Oakes (1986)
    • 19. Retail, Wholesale and Department Store Union v. Dolphin Delivery (1986)
    • 20. Ontario Roman Catholic High School Funding Case (1987)
    • 21. Labour Trilogy of 1987 (Alberta Labour Reference, Public Service Alliance, Sask. Dairy Workers)
    • 22. Quebec v. Ford et al (1988)
    • 23. Morgentaler v. the Queen (1988)
    • 24. Borowski v. Minister of Justice of Canada (1988)
    • 25. Tremblay v. Daigle (1989)
    • 26. Andrews v. Law Society of British Columbia (1989)
    • 27. R. v. Turpin (1989)
    • 28. McKinney v. University of Guelph (1990)
  • 11. List of cases (continued)
    • 29. Askov v. The Queen (1990)
    • 30. R. v. Sparrow (1990)
    • 31. R. v. Keegstra (1990)
    • 32. Lavigne v. Ontario Public Service Employees Union (1991)
    • 33. Ref re Electoral Boundaries Act (Sask.) [1991]
    • 34. R. v. Zundel (1992)
    • 35. R. v. Butler (1992)
    • 36. Schachter v. Canada (1992)
    • 37. Rodriguez v. Attorney-General of British Columbia (1993)
    • 38. Symes v. Canada (1993)
    • 39. Egan et al. v. the Queen (1995)
    • 40. Re Thibaudeau and the Queen (1995)
    • 41. RJR-MacDonald Inc. v. Attorney General of Canada (1995)
    • 42. Van der Peet v. The Queen (1996)
    • 43. Eldridge v. British Columbia (Attorney General) (1997)
    • 44. Winnipeg Child and Family Services v. G. (D.F.) (1997)
    • 45. Delgamuukw v. British Columbia (1997)
    • 46. Vriend v. Alberta (1998)
    • 47. Ref re Quebec Secession (1998)
    • 48. M. v. H. (1999)
    • 49. R. v. Mills (1999)
    • 50. R. v. Marshall (Sept. 17, 1999)
    • 51. R. v. Marshall (motion for Rehearing and Stay, Nov. 17, 1999)
    • 52. Law v. Canada (1999)
    • 53. Little Sisters (2000)
    • 54. R. v. Sharpe (2001)
    • 55. Sauvé (2002)
    • 56. Dunmore v. Ontario (2002)
    • 57. RWSDU v. Pepsi (2002)
    • 58. Doucet-Boudreau v. Nova Scotia (2003)
    • 59. Syndicat Northcrest v. Amselem (2004)
    • 60. Can. Fed. of Children, Youth & the Law (2004)
    • 61. Nfld. (TB) v. N.A.P.E. (2004)
    • 62. R. v. Powley (2004)
    • 63. Haida Nation v. B.C. (2004)
    • 64. Mikisew Cree First Nation (2005)