Public Law IIPOLS 3136 3.0, Winter, 2010

• Course outline and course kit available online at

• http://www.arts.yorku.ca/polsci/rbazk/

• Assignments and Grading Scheme:• Mid-Term Examination (Friday, Feb. 26,

2010) 20%• Tutorial Participation 10%

Case Comment (due

• Friday, March 19) 40%

• Final Examination • (During final exam• period) 30%

• Note: All assignments are mandatory. Failure to hand in an assignment will result in an incomplete grade for the course

• An historic occasion: The Constitution Act 1982 is signed into law by Queen Elizabeth II at Ottawa.

• The Charter of Rights and Freedoms, part of the Constitution Act, 1982, will introduce a new and eventually controversial dynamic into Canadian political life.

Language of Rights• Ronald Dworkin: " …individuals have a right to equal concern and

respect in the design and administration of the institutions that govern them….  They possess [this right] not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice.”

• Civil rights (liberties) are bestowed upon individuals by their nation-states

• Human rights are said to belong to all individuals by virtue of their humanity

• Negative liberties (rights) imply freedom from the state• Positive liberties (rights) imply the empowerment of individuals by

the state• Can one truly have “freedom” without the power to exercise that

feedom?

Rights in liberal democracies

• Optimial idea of freedom      J.S. Mill:  “harm” principle for limits

• Limits to rights: -some differences in ability (eg. qualifications for driver's license, or to become a doctor) -promote honesty (eg. limits to freedom of speech:  suits for defamation) -need to preserve public order -to deal with emergencies -resolve conflicts of rights -community-wide restrictions on moral behaviour (eg pornography)

Origins of Rights-Consciousness in Canada

• Political theory of liberalism– European Renaissance of

15th century

– Protestant reformation

– Glorious Revolution (England: 1688)

– John Locke: Second Treatise on Gov’t 1690

• rule of law “one rule for the Rich and Poor, for the Favourite at Court and the Country Man at Plough”

• judicial indepencence

• common law protections for individual freedom:

– strict attention to rule of law: Entick v. Carrington 1765

– mens rea

– crown must prove case beyond reasonable doubt

– free confessions

– can’t be forced to self-incriminate

– prerogative writs (habeas corpus)

• Development of democratic values– growth of franchise

Rights-Consciousness (2)

• U.S. Bill of Rights see:• http://www.law.cornell.edu/

constitution/

• Jefferson (declaration of independence): “…all men are created equal [and] endowed by their Creator with certain unalienable rights [including] Life, Liberty and the pursuit of

Happiness.” (1776)– To get 1787 constitution

ratified, state leaders insisted on a Bill of Rights; added in 1789 as first 10 amendments to 1787 constitution:

• freedom of speech, press, assembly & religion

• procedural rights: no unreasonable search or seizure, right not to testify against self, can’t be punished twice for same offence, due process safeguards, no cruel or unusual punishment

• positive legal rights: speedy trial, jury trial for serious cases, reasonable bail, to bear arms, and to refuse accommodation to soldiers

Rights-Consciousness (3)

• Canada’s bilingual and bireligious heritage– demands in 1864 for

guarantees of minority language and minority religious education rights prior to Confederation in 1867

– “small bill of rights”:• S. 133 of BNA Act: Eng or Fr

in Parl, Quebec leg., and Can & fed courts; similar guarantees in Manitoba in 1870, & AB and Sask in 1905

• S. 93: safeguards existing denominational school rights

• Legislative Supremacy– Preamble to BNA Act:

Canada’s constitution “similar in principle” to that of the U.K.

– legislative supremacy one aspect of U.K. constitution: seems to contradict idea of a constitutional bill of rights

– A.V. Dicey: Introduction to the Study of the Law of the Constitution (1885)

• human rights protected by common law

• written constitution is too rigid; trust legislature

Civil Liberty Cases prior to Can Bill of Rtssee Constitution Act 1867:

http://laws.justice.gc.ca/en/const/c1867_e.html#pre

• B.C.: disc leg against Orientals– 1899: JCPC stuck down law

restricting employment of Orientals as ultra vires prov. Jurisdiction

– 1902: JCPC upheld denial of vote to Orientals - leg sup

• Private suits by Blacks against pte disc: some succeeded, most didn’t because cts emphasized private right to contract

• Sask: disc leg agt Orientals: upheld by SCC, 1914

• “Persons” case: 1930• Alberta Press Case (1938)

– impugned: package of Social Credit legislation: unanimously struck down

– “Duff doctrine”: obiter dictum: because Can. const is “similar in principle” to that of U.K., courts can strike down legislation violating trad. human rights. Also, Canada is a democracy: H of C is representative. “Free public discussion … is the breath of life for parliamentary institutions”

Civ Liberty Cases prior to Can Bill of Rts (2)

• Treatment of Japanese Canadians during WWII: courts did not intervene

• “Gouzenko affair” in 1945: secret trials of 26 under War Measures Act without usual procedural protections. Led to Can Civ Liberties Association

• Duplessis era– Saumur, 1953: SCC struck

down Que City bylaw about littering, but aimed at Jehovah’s Witnesses. Majority claimed not within prov. jurisd.

– Switzman v. Elbling, 1957: SCC struck down Padlock Law because it trenched on Parl’s crim law jurisdiction

– Roncarelli v. Duplessis, 1959: Roncarelli posted bail for JWs, and Duplessis cancelled his restaurant liquor license. Roncarelli sued Duplessis for violation of rule of law (Frank Scott represented Ron.), and won.

Canadian Bill of Rightshttp://laws.justice.gc.ca/en/ShowFullDoc/cs/C-12.3///en

• Spearheaded by PM John Diefenbaker, and enacted in 1960

• S. 1: rights to life, liberty, sec of person, enjoyment of property, equality before law, freedom of religion, speech, assembly, association and press have existed and continue to exist without discrimination by reason of race, national origin, colour, religion or sex

• S. 2: lists traditional common law legal rights: habeas corpus, no arbitrary detention or imprisonment, no cruel or unusual punishment, no arrest without lawful reason, right to retain lawyer without delay, right not to be forced to incriminate self, innocent until proven guilty, ind and imp tribunal, reasonable bail, interpreter. Right to a fair hearing in accord with fundamental justice to determine rights and obligations.

• “notwithstanding clause”

Canadian Bill of Rights (2)

• Robertson & Rosetanni v. the Queen (1963)– impugned: fed. Lord’s Day

Act

– Ritchie (for majority): Freedom of religion “has existed;” therefore no violation

– Fr of Rel means an absence of disabilities, but govt’s can promote religious practices

– Although Act has a religious purpose, the effect is purely secular

– Cartwright dissented: both purpose & effect of Act compel, under penal sanction, observance of a particular religious holy day

– Courts can strike down laws under Bill of Rights; otherwise the “notwithstanding” clause would not be necessary

Canadian Bill of Rights (2)

• Drybones (1970)– impugned: section of Indian

Act that made it an offence for an Indian to be intoxicated off a reservation. No reservations in NWT.

– Drybones claimed equality before the law violated

– Ritchie (for majority): Where it is “an offence…on account of race…to do something which all Canadians who are not members of that race may do…” there is a violation of equality.

– Ritchie adopts Cartwright’s reasoning from Rosetanni that notwithstanding clause means Bill of Rights is more than a rule of construction.

– Cartwright dissented. Said he’d changed his mind since Rosetanni. It would be dangerous for the courts to usurp legislature’s role by deciding what statutes violate Bill of Rights.

Canadian Bill of Rights (3)

• Lavell & Bedard (1974) – impugned: part of Indian Act

that states that if an Indian man marries a non-Indian, he retains status and his children inherit it, but if an Indian woman marries a non-Indian, she forfeits her status, as do her children.

– Ritchie for majority (5-4): equality before the law, according to Dicey, means equality in the administration of the law.

– If all Indian women are treated equally, there’s no necessary discrimination. (Indian women aren’t compelled by law to marry non-Indians).

• Bliss (1979): – impugned: part of Un Ins Act

that stipulated longer qualifying period for work absence due to pregnancy. SCC: no discrimination, as the provision applies to everyone.