Constitutional Law - University of British Columbia Faculty of Law
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Syllabus LAW 100.02 Canadian Constitutional Law (2009-2010) Tuesday & Thursday 2:oo-3:30 p.m. Shigenori Matsui Professor of Law, University of British Columbia West Mall Swing Space Building 5th floor, 2175 West Mall, Vancouver V6T 1Z4 Phone 604-822-5592 e-mail matsui@law.ubc.ca Course 6 CREDITS THE BASIC PURPOSE OF THE COURSE This course is designed to outline the Canadian Constitutional Law. The fall semester is devoted to general introduction, federalism issues and aboriginal people. The spring semester is devoted to protection of individual rights under the Charter. The goal of this course is to provide students basic knowledge in constitutional law. This course will emphasize the comparative perspective. By taking comparative perspective, the students can better understand the nature and characteristics of Canadian Constitutional Law. COURSE MATERIALS Constitutional Law Group, Canadian Constitutional Law (3rd edition 2002)* * New edition will be published by the end of October but we would use the old edition together with added materials. Supplementary materials to be sent to you online Reference (you do not need to read these books, but they may be helpful to have deeper understanding of the constitutional law) Peter W. Hogg, Constitutional Law (Thomson 2009) Leonard I. Rotman, Bruce P. Elman, & Gerald L. Gall, Constitutional Law: Cases, Commentary and Principles (Thomson 2008) EVALUATION Students will be evaluated based upon the short reflective essay and final examination. The reflective essay occupies 15% and the final examination occupies 85% of the total grade. Each student is required to attend the class after reading assigned materials and is encouraged to participate actively in the class discussions. I will welcome any questions or comments during the class. If I cannot answer the question right away, I will do my best to find an answer as quickly as I can. I must note that the extended absence might disqualify the students to take the final examination. The examination will be evaluated based on the organizing skill, analyzing skill, and writing skill. QUESTIONS i My office is on the 5th floor of the Swing Space building, sharing office with my colleagues. I do not have established office hours but I will be in my office most of the days except for teaching class and faculty council or committee meetings. Please feel free to come to see me if you have any questions. You can ask questions by e-mail. If you want to have an appointment, please send me an e-mail. ii COURSE OUTLINE (this is merely a tentative schedule, which is subject to changes) Italic indicates the cases, which can be found in the casebook. CLG: Constitutional Law Group, Canadian Constitutional Law H: Hogg, Constitutional Law REG: Leonard I. Rotman, Bruce P. Elman, & Gerald L. Gall, Constitutional Law: Cases, Commentary and Principles ** : Supplementary materials Fall Semester 10 September I Foundation of Canadian Constitutional Law CLG3-28, 29-46, H 1-65, REG 1-52 Introduction What is Constitution? Brief History of Canadian Constitution Why do we need the Constitution? Fundamental Principles of Canadian Constitutional Law Reference re Secession of Quebec Supremacy of the Constitution 15 September II Judicial Review and Constitutional Interpretation CLG 29-46 Judicial Review Marbury v. Madison** Constitutional interpretation: Living tree Doctrine Edwards v. AG Canada Constitutional Interpretation: the Necessity of Contextual Interpretation R. v. Blais Reference re Same-Sex Marriage The Rule of Law Roncarelli v. Duplessis (CLG, at 640) Re Manitoba Language Rights BC v. Imperial Tobacco Canada Ltd.** 17 September III Courts and Judicial Power CLG469-507, H 185-270, REG 199-246 Structure of the Judiciary The Power of the Judiciary Reference re Residential Tenancies Act Sobeys Stores Ltd v. Yeomans Reference re Young Offenders Act MacMillan Bloedel Ltd v. Simpson Reference re Amendments to the Residential Tenancies Act The Power of Judicial Review McEvoy v. AG of New Brunswick and AG of Canada (ambiguous reference) Crevier v. Quebec (preclusion of judicial review) Independence of Judiciary Reference re Provincial Court Judges 22 September iii IV Process of Constitutional Litigation: Justiciability Requirement and Standing CLG 46-51, 1300-1304, REG 53-107 Standing Minister of Justice v. Borowski Hy and Zel’s Inc v. Ontario R. v. Wholesale travel Group Inc. Canada Egg marketing Agency v. Richardson Mootness Borowski v. Canada Doucet-Boudreau v. Nova Scotia R. v. Smith Doe v. Canada Justiciability Reference re Secession of Quebec Reference re Same-Sex Marriage Chaoulli v. Quebec Harvard College v. Canada Leave to Appeal R v. Kelly 24 September, 29 September, and 1 October 1 V Federalism: Historical Perspective CLG 55-195, 442-449, H 111-157, 271-330, REG 122-197, 247-73 Before Confederation Structure of Government established by the Constitution Act of 1867 Nineteenth Century Citizen Insurance Company v. Parsons Russel v. The Queen Hodge v. The Queen A-G Ontario v. A-G Canada Early Twentieth Century Reference re the Board of Commerce Act Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co. Toronto Electric Commissioners v. Snider The King v. Eastern Terminal Elevator Co. After 1930s Proprietary Articles Trade Association v. A-G Canada Reference re the Regulation and Control of Aeronautics in Canada Reference re Regulation and Control of radio Communication in Canada A-G Canada v. A-G Ontario (Labor Conventions) A-G Canada v. A-G Ontario (The Employment and Social Insurance Act) A-G BC v. A-G Canada (The Natural Products Marketing Act) 6 October VI Federalism: Pith and Substance Doctrine CLG 197-224, H 365-91, REG 109-40 Union Colliery Company of BC v. Bryden R. v. Big Drug Mart Ltd. R. v. Morgentaler iv Canadian Western Bank v. Alberta** 8 October no class 13 October VII Federalism: Necessarily Incidental CLG 224-30 REG, 141-53 General Motors of Canada Ltd v. City National Leasing Reference re Goods and Services Tax 15 October VIII Federalism: Double Aspect Doctrine and Interjurisdictional Immunity CLG 231-54, H 392-424, REG 155-79 Double Aspect Doctrine Hodge v. The Queen Multiple Access Ltd. v. McCutcheon Interjurisdictional Immunity McKay v. The Queen Commission de la Sante et de la Securite du Travail v. Bell Canada Canadian Western Bank v. Alberta** 19 October – 23 October Law in Context 27 October IX Federalism: Paramountcy and Order of Applying Constitutional Doctrines CLG 254-72, H 425-45, REG 179-97 Paramountcy Ross v. Registrar of Motor Vehicles Multiple Access Ltd v. McCutcheon Rothmans, Benson & Hedges Inc v. Saskatchewan Bank of Montreal v. Hall Canadian Western Bank v. Alberta** The Order of Applying the Constitutional Doctrines Canadian Western Bank v. Alberta BC v. LaFarge Canada Inc.** 29 October & 3 November X Trade and Commerce CLG 323-388, H 515-532, REG 275-329 Federal and Provincial Power over the Economy Black and Co. v. Law Society of Alberta Canadian Egg Marketing Agency v. Richardson Carnation Co. Ltd v. Quebec Agricultural Marketing Board Canadian Industrial Gas and Oil Ltd v. Government of Saskatchewan Central Canada Potash Co. Ltd v. Government of Saskatchewan Scope of the Trade and Commerce Power Citizens Insurance Company v. Parsons Canada v. Canadian National Transportation Ltd First Branch: regulation of Inter-provincial and International Trade and Commerce v The Queen v. Klassen Caloi Inc. v. AG Canada Cold Seal v. Alberta The King v. Eastern Terminal Elevator Co. Murphy v. Canadian Pacific Railway Canadian Industrial Gas 7 Oil Ltd v. Saskatchewan Central Canada Potash Co. v. Saskatchewan Carnation Co. Ltd. v. Quebec Agricultural Marketing Board Manitoba v. Manitoba Egg and Poultry Assn. Reference re Agricultural Products Marketing Act Second Branch: Regulation of Trade and Commerce Affecting the Whole Dominion General Motors of Canada Ltd. v. City National Leasing A-G Ontario v. A-G Canada R. v. Dominion Stores Labatt Brewing Co. v. Canada Kirkbi AG v. Ritvik Holding Inc. 5 November & 10 November XI The Criminal Law Power CLG 389-426, H 479-512, REG 377-434, Federal Criminal Law Power Reference re Validity of s. 5(a) of the Dairy Industry Act (Margarine Reference) Labatt Brewing Co. v. Canada RJR-MacDonald Inc. v. Canada R. v. Hydro-Quebec Reference re Firearms Act Chatterjee v. Ontario (Attorney General), 2009 SCC 19** Provincial Power to Punish Re Nova Scotia Board of Censors v. McNeil Bedard v. Dawson Westendorp v. The Queen Rio Hotel Ltd v. New Brunswick R. v. Morgentaler 12 November & 17 November XII Peace, Order, and Good Government (POGG) CLG 273-322, H 447-478, REG 435-502 The Scope of POGG Power Russell v. the Queen A-G Ontario v. A-G Canada Reference re The Board of Commerce Act Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co. A-G of Ontario v. Canada Temperance Federation National Concern Johannesson v. Rural Municipality West St. Paul Munro v. national Capital Commission Re Anti-inflation Act R. v. Crown Zellerbach Canada ltd. Emergency Power Reference re Anti-inflation Act vi R. v. Crown Zellerbach Canada Ltd. The Power over the Environment Friends of the Oldman River Society v. Canada 19 November XIII Delegation CLG 442-49, H 333-64 Delegation between the Federal Government and Provinces 247-73 A-G of Nova Scotia v. A-G of Canada Prince Edward Island Potato marketing Board v. H.B. Willis Coughlin v. Ontario Highway Transport Board Lord’s Day Alliance v. A-G of BC Intergovernmental Agreements Reference re Canada Assistance Plan November 24 XIV Other Federal Powers: Taxation and Spending Power CLG 428-442, H 159-184, REG 331-376, 503-602, Taxation and Spending Federal Powers Winterha Stables Ltd v. Canada Provincial Powers Westbank First Nation v. BC Canadian Industrial Gas & Oil Ltd v. Saskatchewan Union of New Brunswick Indians v. new Brunswick 26 November XV Constitutional Amendment CLG 450-466, H 67-109, REG 1363-1398 Constitutional Amendment prior to 1982 Patriation Reference Constitutional Amendment after 1982 Quebec Quebec Veto Reference Reference re Secession of Quebec 1 December & 3 December XVI Aboriginal Peoples and the Constitution CLG 511-630, H 615-675, REG 603731 Jurisdiction Dick v. The Queen Delgamuukw v. BC R. v. Morris** Aboriginal Title Guerin v. The Queen Delgamuukw v. BC Fiduciary Relationship Guerin v. The Queen R. v. Sparrow Duty to Consult Haida Nation v. BC** Aboriginal Rights R. v. Sioui vii Chippewas of the Sarnia v. Canada R. v. Sparrow R. v. Van Der Peet R. v. Gladstone Treaty Rights R. v. Marshall Metis rights R. v. Powley Inuit Rights Reference re Term “Indians” Governance R. v. Sioui R. v. Pamajewon viii Winter Semester Law in Context 4 January to 9 January 12 January & 14 January I Protection of Individual Rights in Canada CLG 633-736, H 699-774, REG 733-96 Common Law Background Re Drummond Wren Re Noble and Wolf Rule of Law Roncarelli v. Duplessis Federalism Union Colliery Co. v. Bryden Cunningham v. Tomey Homma Quong Wing v. The King Implied Bill of Rights Reference re Alberta Statutes Saumur v. Quebec Switzman v. Elbling and A-G of Quebec AG Canada v. Dupond Unwritten Constitutional Principle Lalonde v. Ontario Bill of Rights Authorson v. Canada Charter 19 January & 21 January II Infringement and Justification CLG 737- 75, H 817-868, REG 837-61 Interpretation of Charter Hunter v. Southham Inc. R. v. Big m Drug Mart Ltd. Edmonton Journal v. Alberta Thomson Newspapers Co. v. Canada Slaight Communications Inc. v. Davidson R. v. Keegstra Reference re s. 94(2) of Motor Vehicle Act Vriend v. Alberta Infringement Justification of the Infringement: Prescribed by Law R. v. Nova Scotia Pharmaceutical Society Justification R. v. Therens R. v. Oakes Edmonton Journal v. Alberta Irwin Toy Ltd. v. Quebec Thomson Newspapers Co. v. Canada RJR MacDonald Inc. v. Canada Dagenais v. Canadian Broadcasting Corporation Sauve v. Canada ix 26 January & 28 January III Application of the Charter CLG 737-815, H 775-815, REG 797-836 Application of the Charter McKinney v. University of Guelph Godbout v. Longueuil Eldridge v. BC Canada v. Khadr Government Inaction Vriend v. Alberta Common Law Dolphin Delivery Ltd v. R.W.D.S.U., Local 580 Hill v. Church of Scientology of Toronto Dunmore v. Ontario 2 February & 4 February IV Freedom of Conscience and Religion CLG 817-892, H 959-976, REG 863-923 Sunday Closing Robertson and Rosetanni v. The Queen R. v. Big M Drug Mart Ltd. Edwards Books and Art Ltd. v. The Queen Education Adler v. Ontario Zlyberberg v. Sundbury Board of Education Trinity Western University v. College of Teachers R. v. Jones Reference re Bill 30 to amend the Education Act (Ontario) Adler v. Ontario Freedom of Religion and Refusal of Blood Transfusion B. (R.) v. Children’s Aid Society of Metropolitan Toronto A.C. v. Manitoba** Personal Thoughts R. v. Morgentaler B. v. Children’s Aid Society of Metropolitan Toronto Bruker v. Marcovitz Same-sex Marriage Halpern v. Toronto Re Same-Sex Marriage Zoning Congregation des Temoins de Jehovah de St JeromeLaFontaine v. LaFontaine Syndicat Northcrest v. Amselem 9 February & 11 February IV Freedom of Expression: General Framework CLG 893-1029, H 977-1043, REG 924-1005, 1257-65 Purpose of Freedom of Expression R. v. Keegstra Ford v. Quebec Retail, Wholesale and Department Stores union, Local 580 v. Dolphin Delivery Ltd. x The Definition of Freedom of Expression Irwin Toy Ltd v. Quebec Prior Restraint Little Sisters Book and Art Emporium c. Canada Political Expression Thomson Newspaper Co. v. Canada Election Campaign regulation Harper v. Canada Libman v. Quebec Hogan v. Newfoundland Sedition Boucher v. R. Use of French Language Ford v. Quebec Devine v. Quebec Contempt of Court BCGEU v. BC Dagenais v. CBC 15 February to 27 February Mid-term break 2 March & 4 March IV Freedom of Expression: Defamation, Hate Speech, and Pornography Defamation and Invasion of Privacy Hill v. Church of Scientology of Toronto Lucas v. Saskatchewan Aubry v. Editions Vice Versa Inc. Hate Speech R. v. Andrews Canada v. Taylor R. v. Keegstra R. v. Zundel Pornography and Child Pornography R. v. Butler R. v. Sharpe 9 March & 11 March IV Freedom of Expression: Commercial Expression and Content-Neutral Restriction Commercial Expression Arwin Toy v. Quebec RJR-MacDonald v. Canada Canada v. JTI-MacDonald Corp Content Neutral Restriction Montreal v. 2952-1366 Quebec, Inc Ramsden v. Peterborough UCFW v. Kmart Canada Pepsi-Cola Canada beverages v. RWDSU R. v. Guignard Reference re ss. 193 and 195.1 of Criminal Code (Prostitution Reference) xi Right of Access to Public Property Committee for the Commonwealth of Canada v. Canada Peterborough v. Ramsden Access to the courts Edmonton Journal v. Alberta Canadian Newspapers Co. v. Canada Dagenais v. CBC R. v. Mentuck Toronto Star Newspapers v. Ontario CBC v. New Brunswick Positive Rights Baier v. Alberta Haig v. Canada Native Women’s Assn. of Canada v. Canada 16 March V Freedom of Association CLG 1031-1069, H 1045-1058, REG 1007-1032, 1033-1069 Freedom of Association Reference re Public Service Employee Relations Act Dunmore v. Ontario Health Services & Support-Facilities Subsector bargaining Assn v. BC Lavigne v. OPSEU R. v. Advance Cutting & Coring Ltd. 18 March VI Democratic Right H 1059-68 Democratic Right Sauve v. Canada Figueroa v. Canada Harper v. Canada 23 March, 25 March, & 30 March VII Equality Right CLG 1133-1220, H 1173-1264, REG 1161-1243 Protection of Equality Right Bliss v. Canada Andrews v. Law Society of BC Eldridge v. BC Law v. Canada Corbiere v. Canada Hodge v. Canada M.v. H. Granovsky v. Canada Nova Scotia v. Martin Trociuk v. BC Auton v. BC Lavoie v. Canada Newfoundland v. NAPE Canada v. Hislop Discrimination against non-citizen Andrews v. Law Society of BC xii Lavoie v. Canada Racial Discrimination Discrimination based on religion Sexual Discrimination R. v. Hess Weatherall v. Canada Benner v. Canada Toiciuk v. BC Discrimination against Disabled Eaton v. Brant County Board of Education Wynberg v. Ontario Winko v. BC Granovsky v. Canada Nova Scotia v. Martin Eldridge v. BC Rodriguez v. BC Discrimination based on marital status Miron v. Trudel Nova Scotia v. Walsh Discrimination against Homosexual Vrienda v. Alberta M. v. H. Canada v. Hislop Reference re Same-Sex Marriage Discrimination based on age McKinney v. university of Guelph Tetreault-Gadoury v. Canada Affirmative Action Lovelace v. Ontario 1 April & 6 April VIII Life, Liberty and Security of the Person CLG 1071-1131, H919-944, H 10711157, REG 1103-1159 General Principle Reference re Section 94(2) of the Motor Vehicle Act (BC) Bodily Integrity R. v. Morgentaler Rodriguez v. BC Suresh v. Canada Human Dignity B. v. Children’s Aid Society of Metropolitan Toronto Canadian Foundation for Children, Youth & the Law v. Canada New Brunswick v. G. (J.) Blencoe v. BC Social Policy Concerns Gosselin v. Quebec Chaoulli v. Quebec Charkaoui v. Canada Canada v. Khadr xiii 8 April IX Multiculturalism and Official Language Right CLG 1221-1261, H 1265-1299, REG 1245-1311 Multiculturalism R. v. Videoflicks Ltd R. v. Big m Drug Mart Ltd R. v. Edwards Book & Art Ltd R. v. Gruenke R. v. Tran Mutual tech Canada, Inc v. Law Adler v. Ontario Official Language Rights AG Quebec v. Blaikie Reference re Manitoba language Rights Montreal v. MacDonald Societe des Acadiens v. Association of Parents R. v. Beaulac Mahe v. Alberta Ford v. Quebec Arsenault-Cameron v. Prince Edward Island 13 April X Constitutional Override and Remedies CLG 775- 80, 1263-1300, H 869-931, REG 1313-1361 Constitutional Override Ford v. Canada Constitutional Remedies Schachter v. Canada Vriend v. Alberta M. v. H. Little Sisters Book and Art Emporium v. Canada Canada v. Hislop RJM MacDonald Inc v. Canada R. v. 974649 Ontario Inc. Doucet-Boudreau v. Nova Scotia Mackin v. New Brunswick xiv
