Category: Constitutional Law

Canadian Constituional Law #36 – Aboriginal Rights

In the second-last podcast for the course, we move outside the Charter and consider the constitutional entrenchment of aboriginal rights in sec 35 of the Constitution Act 1982. Even though these rights are entrenched outside of the Charter, we will see how jurisprudence has imposed limits upon aboriginal rights in a style very similar to the section 1 analysis normally performed on charter rights.

St. Catherine’s Milling and Lumber Co. v. The Queen (1888)

Calder v. British Columbia (Attorney General) (1973)

Guerin v. The Queen (1984)

R. v. Sparrow, (1990)

R. v. Van der Peet, (1996)

Delgamuukw v. British Columbia (1997)

Canadian Consitutional Law #35: Language Rights

Language rights are very important in Canada as a result of the historical French-English tension. However, sections 91 and 92 do not assign administration of language-related issues to a specific level of government, so it is treated as an ancilliary sphere over which both levels of government have some control. Language is not a ground listed in section 15, although it may be analogous. The most important provisions relating to language in the constitution are in s133 (the right to use either official language in court and in parliament) and in the Charter between ss16 and 23, the latter being the right to minority language education.

Devine v AG Qc (1988)

AG Manitoba v forest (1979)

Mercure v AG Saskatchewan (1988)

R. v Paquette (1988)

Mahe v Alberta (1990)

Ford v Quebec (AG) (1988)

Canadian Constitutional Law #34: Economic and Social Rights

Why does the Charter focus on legal and politcal rights, to the exclusion of economic and social rights? What does this absence mean for Canadian citizens? Could economic and social rights be read into the charter under an existing section? That’s what Gosselin tries to do in Gosselin v Quebec, without success. In this podcast we shall study the supreme court’s judgement, focusing on the dissenting opinion that Canada should include an economic right to basic subsistance under sec 7.

Gosselin v Quebec (2002)

Canadian Constitutional Law #33: Equality Rights

In this podcast we will be discussing section 15 of the charter, equality rights. It is important to understand the difference between formal equality (American model) and substantive equality (Canadian model). We will consider the case of Law v Canada, which contains a very thorough analysis of equality rights by Iacobucci J.
Regina v Drybones (1970)

AG Canada v Lavell (1974)

Bliss v Canada (1979)

Law v Canada (1999)

Canadian Constitutional Law #32: Section 7 continued, Assisted Suicide

Continuing on with our look at section 7 rights, we will now consider the case of Rodriguez v BC (AG). A woman with Lou Gehrig’s disease seeks a declaration that she may legally seek doctor-assisted suicide when her condition deteriorates to the point that she wishes to end her life. Can the right to choose the manner of one’s death be a constitutionally protected right under security of the person?

Rodriguez v BC (AG) (1993)

Canadian Constitutional Law #31: Life, Liberty, and Security of the Person

Moving on to section 7 of the Charter, the first and broadest of the legal rights (ss7-14), we consider life, liberty, and security of the person. This is often used in a criminal law setting, but the cases we looked at in class were more unique. In this podcast, we consider the meaning of fundamental justice in the Motor Vehicle reference, then we look at the Morgentaler case in detail. In Morgentaler, the court found the existing abortion laws to violate security of the person without ever deciding whether women have the right to an abortion under the charter (only Wilson J expressly dealt with the substantive aspect of this issue). Next podcast we will continue section 7 rights with Rodriguez v BC.

Lochner v New York (1905)

Reference re sections 193 and 195.1(1)(c) of the Criminal Code

Reference re Section 94(2) of the Motor Vehicle Act (BC) (1985)

R v Morgentaler (1988)

Canadian Constitutional Law #30: Hate Speech

Is hate speech a form of expression? Can it earn the same Charter protection as dissident political speech? In this podcast, we will discuss hate speech, focusing mainly on R v Keegstra. We will briefly compare the Canadian and American conceptions of hate speech. Unlike in the USA, Canadian courts have held hate speech to be an inherently harmful activity analogous to a verbal assault, which is not deserving of the same protection as other forms of expression. This view is not unanimous, and we will look at McLachlin J’s dissent in Keegstra and Taylor as an alternative view of hate speech not accepted by the supreme court.

R v Keegstra (1990)

Taylor v Canadian Human Rights Commission (1990)

Collin v Smith (1978) (American Case, for comparison only)

RAV v City of St Paul, Minnesota (1992) (American Case, for comparison only)

Ross v New Brunswick School District No 15 (1996)

Saskatchewan (HR commission) v Bell (1991)

Canadian Constitutional Law #29: Freedom of Expression

What constitutes expression? Does it have to be speech, or can it include actions such as picketing? What restrictions on expression are justified? In our second podcast on fundamental freedoms, we will consider the importance given to free expression in our constitution (sec 2(b)). In keeping with a pre-Charter view that expression is necessary for a healthy democracy (see episode 22), the supreme court has traditionally given expression a very broad interpretation. In the next podcast, we will consider how the primacy placed on the value of expression changes in cases of hate speech.

R v Keegstra (1990)

Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd (1986, SC)

BCGEU v British Columbia (AG 1988)

UFCW local 1518 v Kmart Canada ltd

RWDSU local 558 v Pepsi-Cola Canada Beverages (west) ltd (2002)

Ford v Qc (1988)

Irwin Toy Ltd v Quebec (AG) (1989)

R Moon, “The Constitutional Protection of Freedom of Expression,” 2000

Canadian Constitutional Law #28: Freedom of Religion

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