Constitutional Law
Archived Posts from this Category
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)
Constitutional Law (Samuel) #2: Mootness Wednesday, Feb 21 2007
Constitutional Law and Constitutional Law I and Iowa State University and Samuel Berbano 11:49 pm
In Samuel Berbano’s second of a series of podcasts on justiciability doctrines, we’ll analyze the question of Mootness as it relates to Federal Article III courts. These courts are bound to take only cases which commentators call a “case or controversy” requirement. This requirement exists to preserve the integrity of the adversarial system.
The second doctrine addressed is mootness. An issue that Federal courts declare moot is not justiciable and cannot be decided. An issue becomes moot when, in the course of litigation, events transpire which deprive one or both parties of a stake in the case. Similar to playing the card game of Poker, one can’t hope to play a hand if (1) they don’t have money in the pot and a personal stake in the outcome and (2) they’ve folded their hand and don’t want to keep playing.
The DeFunis case shows how an issue can become moot in the course of litigation. Roe, our second case, shows a case that would normally be considered moot, but falls under one of the four exceptions to the mootness doctrine:
1) “Continuing Harm to Plaintiff”
2) “Voluntary Cessation”
3) “Capable of Repetition, But Evading Review”
4) Class Action Lawsuits
DeFunis v. Odegaard, 416 U.S. 312 (1974)
Roe v. Wade, 410 U.S. 113 (1973)
Canadian Constitutional Law #23: Approaches to Charter Interpretation Saturday, Feb 10 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 3:13 pm
Well, it’s February and we made it to the Charter (if I only I could make it to spring break…) In this podcast we’ll talk about the advent of the Charter and some approaches the court has developed for its interpretation. Interpreting a constitutional document is different from regular statute interpretation, so Dickson J and Wilson J have taken on the task of inventing terms for the work they do, which we shall then memorize and repeat on exams. Good times.
Hunter v Southam (1984)
R v. Big M Drug Mart (1985)
Reference re sec 92(2) of Motor Vehicles Act (1985)
R v Therens (1985)
R v Keegstra (1990)
Reference re Public Service Employee Relations Act (Alta) (1987)
Edmonton Journal v Alberta (AG) (1989)
Canadian Constitutional Law #22: Implied (and Real) Bill of Rights Saturday, Feb 10 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 3:12 pm
Were there any protections in place for our rights before the Charter?
In this podcast we first look at the “implied bill of rights”, a concept drawn from a series of pre-Charter cases that seem to hint at the idea that there may be a sphere of fundamental freedoms needed for a democracy which is beyond the reach of the provincial (and perhaps federal) government. Then we will look at the Drybones case and discuss why the Canadian Bill of Rights was ineffectual. Next podcast we will begin on the Charter.
Reference re Alberta Statutes (1938)
Boucher v the King (1951)
Saumur v City of Qc (1953)
Switzman v Elbling (1957)
AG Canada v Dupond (1978)
Ontario Public Service Employees’ Union v AG Ontario (1987)
Canadian Bill of Rights (1960)
R v. Drybones (1970)
Curr v R (1972)
Winnipeg School Division 1 v Craton (1985)
Singh v Minister of Employment and Immigration (1985)
Canada v Lavell (1974)
Bliss v AG Canada (1979)
Canadian Constitutional Law #21:Racism in the Law, Pre-Charter Era Saturday, Feb 10 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 3:12 pm
In this podcast we will look at three cases as examples of how racism in the law was dealt with before the charter entrenchment of rights. Without a constitutional document protecting rights, we see that the court could only strike racist legislation on the basis of division of powers. Both the JCPC and the Supreme Court explicitly state that it is not the place of the court to evaluate the wisdom or morality of discrimination in the law, their only role is to evaluate the constitutionality of the law. Predictably, this doesn’t do a lot to allow Japanese citizens in Vancouver to vote, or Chinese citizens in Saskatchewan to employ white waitresses.
Union Colliery Co v Bryden (1899)
Coal Mines Regulation Act
Cunningham v Tomey Homma (1903)
Female Employment Act (1912)
Quong Wing v the King (1914)
Canadian Constitutional Law #20: International Economic Obligations Saturday, Feb 10 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 3:11 pm
In this podcast we discuss some of Canada’s international economic agreements, and how they are impacted by division of power issues regarding the economy. We will look at some ways in which the constitution is “amended” in practice - that is, the methods that may be employed to achieve a distribution of power between the two levels of government that is not strictly what one would expect from sections 91 and 92.
Hunt v T & N Plc. (1993)
Lovelace v Ontario (2000)
Hospital insurance and Diagnostic Services Act (1957)
Medical Care Act (1966)
Canada Health Act (1984)
Canada Assistance Plan 1966 (CAP)
Unemployment Insurance Reference (AG Canada v AG Ontario) (The Unemployment and Social Insurance Act) (1937)
AG Canada v. AG Ontario (Labour Conventions) (1937)
Winterhaven Stables v Canada (1989)
Reference re Canada Assistance Plan (BC) (1991)
Coughlin v Ontario Highway Transport Board (1968)
Constitutional Law (Samuel) #1: Standing Sunday, Jan 28 2007
1L and Constitutional Law and Constitutional Law I and Iowa State University and Samuel Berbano 1:54 pm
In Samuel Berbano’s first of a series of podcasts on justiciability doctrines, we’ll analyze the question of standing as it relates to Federal Article III courts. These courts are bound to take only cases containing what legal commentators call a “case or controversy” requirement. This requirement exists to preserve the integrity of the adversarial system.
The first justiciability addressed is standing. Plaintiffs have standing when the court finds that there is (I) an legally-recognised harm to the plaintiff, (II) a reasonable causal connexion between the injury to the plaintiff and the complained-of conduct of the defendant, and (III) a likelihood that an affirmative ruling will vindicate the rights of the plaintiff.
Cases include issues of what constitutes a harm, when third parties suffer harm, questions of taxpayer standing, and a hypothetical about punching one’s younger brother in the face. No little brothers were harmed in the making of this podcast.
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Warth v. Seldin, 422 U.S. 490 (1975)
Com. of Massachusetts v. Mellon, 262 U.S. 447 (1923)
Flast v. Cohen, 392 U.S. 83 (1968)