McGill Faculty of Law
Archived Posts from this Category
Canadian Constitutional Law #32: Section 7 continued, Assisted Suicide Friday, Apr 13 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 10:30 pm
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 Friday, Apr 13 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 10:09 pm
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 Friday, Apr 6 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 11:22 am
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 Friday, Apr 6 2007
1L and Canadian Constitutional Law and Constitutional Law and Erin Morgan and McGill Faculty of Law 11:19 am
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 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)
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)