March 2007
Monthly Archive
Canadian Constitutional Law #28: Freedom of Religion Saturday, Mar 10 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 10:11 am
Can you take your kirpan to school? Not even if it’s in a box under your clothes? These are the questions of section 2(a), freedom of religion. We’ll talk about the evolution of the concept of freedom of religion and look at two cases as examples. First up is Big M Drug Mart, one of the first freedom of religion cases. Then we look at Multani, a case in the media recently about Kirpans in school. If you’re following the current discussions on reasonable accomodation, this is a classic example of how the courts try to respond to situations where seemingly neutral rules impact one group more than another.
Multani v. Commission Scolaire Marguerite‑Bourgeoys, (2006)
R v Big M Drug Mart (1985)
Lord’s Day Act 1970
Canadian Constitutional Law #27: Section 33, Notwithstanding Clause Saturday, Mar 10 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 9:51 am
Section 33 of the Charter allows sections 2 and 7-15 to be overridden if parliament or a provincial legislature expressly declare that a law shall operate notwithstanding the charter. This section is almost never invoked by the government because of the political repercussions, but it was considered by the supreme court in Ford v Quebec. We then return to section 1 analysis with a case about economic crisis, and whether that can qualify as a pressing reason to limit rights.
Ford v Quebec (AG), (1988)
Newfoundland (Treasury Board) v. N.A.P.E., (2004)
Canadian Constitutional Law # 26: Section 1 Analysis Saturday, Mar 10 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 12:44 am
If you listen to only one Canadian Constitutional Law podcast, it should be this one. Or maybe number 5, since that had both the landmark persons case and the concept of the constitution as a living tree. Well, let’s say if you listen to only two, this should be the second.
We discuss sec 1 analysis, which is used in virtually every charter challenge once it has been established that a right exists and is being infringed. Section 1 allows the government to limit a right if they can demonstrate the limit is: prescribed by law, reasonable, and demonstrably justified in a free and democratic society. R v. Oakes is the early charter case that established a clear test to determine whether the section 1 criteria have meet met, and this test is still used today with very few adjustments. As I promised, I am posting a little map of how a charter challenge works from my notes to make the big picture more clear:
- Is there a violation of a right?
- Is the violation a reasonable limit under sec 1?
- The limit is prescribed by law?
- Demonstrably justified in a free/demo society?
i. Purpose is related to concerns which are pressing and substantial
ii. Means used to achieve objective are not disproportionate
1. Rational connection
2. Minimal impairment
3. Balance btwn both competing interests of society and the individual AND balance btwn the benefits of the legislation and the harm caused by it (Dagenais v CBC)
NOTE - In this podcast I originally said I would discuss both section 1 and section 33, but the latter was made into a separate podcast due to length. We will discuss the notwithstanding clause in episode 27.
Osborne v Canada (Treasury Board), (1991)
R v Nova Scotia Pharmaceutical Society, (1992)
R v Oakes, (1986)
Edmonton Journal v Alberta (AG), (1989)
Irwin Toy ltd v Quebec (AG), (1989)
Thompson Newspapers Co v Canada, (1998)
RJR MacDonald Inc v Canada (AG), (1995)
R v Lucas, (1998)
Canadian Constitutional Law #25: Application of the Charter and Charter Standing Saturday, Mar 10 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 12:44 am
Whose behaviour is bound by the Charter? Sec 32 tells us it applies to government (as opposed to private actors), but in practice this is more difficult to define than it would seem. We will look at a series of cases which define the limits of the Charter’s application. Over time, a body of case law has been built up which places some quasi-governmental entities under Charter jurisdiction (for example, municipalities) while other entities (universities, hospitals, the CBC) are usually not considered to by part of government. However, even a non-governmental entity may be subject to the Charter in certain situations if it executes a government function.
Retail, Wholesale, and Department Store Union Local 580 v Dolphin Delivery Ltd., (1986)
Shelley v Kraemer, (1948)
New York Times v Sullivan, (1964)
McKinney v University of Guelph, (1990)
Godbout v Longueuil, (1997)
Eldridge v British Columbia, (1997)
Vriend v Alberta, (1998)
Hill v Church of Scientology of Toronto, (1995)
Canadian Constitutional Law #24: Judicial Review in Light of the Charter Wednesday, Mar 7 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 3:08 am
In this short episode we will discuss the viewpoints of several authors on the issue of judicial review and its role in a democracy. We will consider the writings of W. Bogart, A. Petter, P. Monahan, and Hogg and Bushell, then look at a quick excerpt from Vriend v Alberta.
Vriend v Alberta, (1998)
R v Morgentaler, (1988)
R v Oakes, (1986)