Public Law IIPOLS 3605 / GL 3136 3.0, Winter, 2006

• Welcome to the course, Keele and Glendon!

• This is a “technology enhanced learning” course

• You MUST use WebCt and either participate in WebCT discussion groups over the week, or attend the tutorial at Glendon Fridays at 1:30.

• You MUST attend 70% of the lectures (8 minimum), even though the lectures are videostreamed

• Course outline• Assignments & grading• Mock Trials• Group work• If you’re thinking about

withdrawing from the course, you need an advising appointment with me first.

• If you haven’t taken Public Law I, the first 4 lectures will be posted on the WebCt site for this course. Watch the lectures to get the background you need for this course.

Human 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.” Sniderman, Russell, Fletcher, Tetlock:  commitment to tolerance.

• My approach:  every human being deserves -- and owes to others -- respect and fair treatment.

• C.B. Macpherson:  rights include opportunities to exercise those rights (positive rights).

• “human right”:  derived either from positive law, or natural law.  (eg. legal rights in Charter) “civil liberty”:  ability to act without constraints (eg. the “fundamental freedoms” in Charter)

Rights in liberal democracies

• 1.  optimal freedom      J.S. Mill:  “harm” principle for limits 2.  procedural fairness when there are limits 3.  equality of application of rights and freedoms

• 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– 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 Rts

• 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 ag Orientals: upheld by SCC, 1914

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

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

– “Duff doctrine”: 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

– 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 Rights

• 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 as 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.

Canadian Bill of Rights (4)

• Oil, Chem and Atomic Workers case (1963): SCC says it’s OK for BC gov’t to prohibit union political contributions if received from check-off.

• 1969: SCC upholds Alberta discriminatory legislation against Hutterites

• Dupond (1978): SCC upholds a Montreal by-law that allowed Council to ban all demonstrations for 30-day periods.

– Beetz: Demonstrations are not “speech in action,” therefore no violation of freedom of speech

– Beetz dismissed the Duff Doctrine

– Laskin: strong dissent

• SCC’s record under Bill of Rights led to support for idea of a constitutional Charter of Rights