January 12, 2013
Ian Greene
 Course expectations
 Introductions
 Electronic resources: www.yorku.ca/igreene
 Introduction to public law and the Canadian legal
system
 Lunch at 12:00 noon, Senior Common Room (140
McLaughlin College upstairs)
 Profs. Soennecken and Greene: guest lecturers around
3 pm (we’ll get together with Section A). Prof.
Fredricksen is standing in for Prof. Soennecken today,
and our guest speaker today is Justice Michael Tulloch)
 Invited to The Absinthe at 5
 Seminar Presentations: sign-up sheet
 Evaluation of readings in each class
 Assignments
 Seminar participation
 Plagiarism & strategy to avoid it
 Do your research, put your sources away, and write the first draft in
your own words without looking at any of your sources. Then add
footnotes indicating where ideas came from, and you may add up to
four quotes for effect.
 Assignments can be automatically checked by “turnitin,” which
reports per centage of overlap with other sources (unless they are
quoted and properly referenced), as well as the names of these
sources.
 Name
 How did you get interested in public administration?
 How do you think your work (current or past) relates
to Canadian constitutional law?
 Graduate Diploma in Justice System Administration:
 Take PPAL 6140 3.0 (for those not already in this year’s
course, do it in your second year). This course is over
and above MPPAL requirements (Profs Jacobs & Greene)
 MRP has to be related to justice system administration
 Internship
 If interested, discuss with me
 www.yorku.ca/igreene: access to supplemental course
readings, powerpoint presentations, audio files.
 Excerpts from Greene’s The Charter of Rights (new edition)
are posted on www.yorku.ca/igreene (optional
supplemental reading).
 I need your accurate email address: check the circulated
list with the sign-up sheet
 “Adjudication” is the dispute-
resolution system used in courts.
Characteristics?

Law applied to facts

Judge makes final decision

Reasons presented for judgment
 How is adjudication different from
arbitration and mediation?

Arbitration: standards agreed to by
disputing parties applied, but not usually
the whole body of law

Mediation: assistance in listening,
understanding, and resolving (contract)
 What are "legal persons?“
 People, corporations, and
governments
 What's the difference between
negative and positive law?
 Negative law: prohibited from
certain behaviours (crim. law)
 Positive law: positive incentive
to change behaviour (tax
deductions for donations to
political parties)
 Main sources of law:
statute law (laws created by
legislatures)
 case law (created by judges)

 Other (informal) sources: Ten
Commandments, Magna Carta
(1209), canon law, writings of
legal scholars (eg. Coke ~ 1630,
and Blackstone ~ 1770),
community standards (eg.
obscenity cases), Hogg's &
Monahan’s texts.
 ratio decidendi; obiter dicta
 common = general
 common law judges "find" the
law
 Parliamentary sovereignty or
legislative supremacy. Aggregate
legislature can do anything.
Seven-fifty-formula; unanimity
formula; some-but-not-all
formula; provinces alone; feds
alone.
 Constitutional conventions:
“rules of political behaviour
regarded by political actors as
binding,” eg responsible gov’t
 Reception: All English statutes
 Federal gov't: date depends on
enacted prior to reception are law in
Canada, unless changed in Canada.
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NB & NS: 1758
Quebec: 1759: French civil
law. 1763: English public law
PEI: 1763
Ontario: 1792
Newfoundland: 1832
BC: 1858
Man, Alta., Sask: 1870.
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when federal laws were inherited
from former colonies. Eg. Quebec,
1763; Ont. 1792.
Imperial statutes remained in force
until Statute of Westminster, 1931.
Development of common law courts
and courts of equity
Preamble to BNA Act: implied Bill
of Rights
Barristers and Solicitors
Judicial Committee of the Privy
Council (JCPC); 1949
England: specialized appeal j's;
Canada: generalist appeal j's.

____________________________
|
Supreme Court of Canada
|
|
9 judges
|
|___________________________|
_____________________|
|
____|___ ____|____
________________|________
federal |
| |
|
|
| federal
appointments | Tax | | Federal |
| 10 provincial & 3 territorial | appointments,
& admin. | Court | | Court
|
|
courts of appeal
| provincial
| 27 js | | 47 js
|
|
128 judges
| administration
|______| |________|
|_______________________ |
|
|
_____________ |______
|
federal
|
|
|
appointments | provincial superior
|
|
provincial
| trial courts
|
|
administration | 829 judges
|
|
|__________________ |
|
|___________________|
|
|
|
___________ |__________
|
|
(All counts as of 2001)
provincial | pure provincial and
|
appointments | territorial courts
|
& admin. |
984 judges
|
|______________________|
federal appointments
and administration
 Reference questions (SCC and provincial courts of appeal)
 common law
 stare decisis
 adversary system
 Superior court judges travel on circuits to visit smaller centres
 Why don’t judges have to retire until 70 or 75?
 County and District courts now merged with superior courts
 judicial independence: purpose to promote judicial impartiality
 Valente decision (1985)
 security of tenure
 financial security
 judicial control over adjudicative matters
 judicial discipline: Canadian Jud Council & prov. Jud. Councils (eg. -
Hryciuk)
 Judicial positivism (John Austin, A.V. Dicey, H.L.A. Hart)

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The only law that exists is the written law
Good judges can always interpret the positive law correctly
 Natural law (John Locke, John Rawls, Ronald Dworkin)
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There are “higher” laws that positive law ought to emulate. These higher laws might
be created by religion, logic, or ethical principles.
 Judicial realism (Karl Llewellyn)
Even if judges try to be impartial, the law can never be perfectly clear. What makes
judges decide the way they do?
 Canadian Judicial realism: Sidney Peck, Peter Russell, many current scholars.

 Critical Legal Theory
 a branch of “critical theory,” which examines institutions from the
perspective of class analysis.
 Trial Courts:
 Improvisors (~10%)
 no single process, but for most
outcomes would be the same
 Strict Formalists (~ 20%)
 particular process followed, and
always leads to the same
conclusion.
 Pragmatic formalists (~45%)
 particular process followed
(check list, shifting balance,
water rising), but judges might
decide differently.
 Intuitivists (~25%)
 “gut feeling”
 Appeal courts:
 Panel process different
 Supreme Court of Canada
 a public law court (~100)
 leave to appeal (~600 apps)
 Problems with justice system
for some litigants and lawyers, a
game
 delay in client’s interest (nearly half
of trial lawyers)
 judges limited by adversary system re
control of caseflow
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 Role of courts: dispute resolution,
prevent abuse of power, official
constitutional philosophers, pawns in
other peoples’ battles
 Minor appeals heard by a single judge in a higher court
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(summary conviction appeals)
Major appeals heard by the provincial Court of Appeal
Ontario has about 18 Court of Appeal judges; usually they
sit in panels of 3 (sometimes 5)
The Federal Court (Appeal Division) has about a dozen
judges; hear cases in panels of 3.
Supreme Court (9 judges) most often hears cases in panels
of 7; sometimes panels of 5 or 9.
per curiam (or per coram) vs. seriatim decisions
 Stare decisis: a rigid form
 Hierarchy of courts
of doctrine of precedent
 Ways around stare decisis:
determining application
of stare decisis
 SCC can choose not to
follow precedent. Ont
CA: policy: follow
 What if conflicting
precedents?
 Distinguish
 Ratio is really obiter
 Per incuriam
 Emphasize different majority
opinion
 ignore
•
Legislation:
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–
–
•
primary legislation (enacted by a sovereign legislature, i.e. Parliament or provincial
legislature)
subordinate legislation (eg. Orders in Council, city bylaws, CRTC regulations)
Both are law; subordinate must be clearly authorized by primary
Manner and form requirements for judges to recognize a law
• Canada’s constitution:
• 1. Written parts
a) Canada Act, 1982 (British statute that makes CA, 1982 law and declares
that no British statute will in future extend to Canada)
b) S. 52 CA 1982: ~30 statutes and orders listed in the schedule to the
Schedule to the Const. Act, 1982, most importantly the Constitution Act,
1867 (formerly called the BNA Act; contains division of powers), and the
Constitution Act, 1982 (contains the Charter and the five amending
formulas)
- Others: statutes & orders established new provinces, or amended
the BNA Act.
 You need to know the following parts for career purposes (most of the
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following in my own words)
CONSTITUTION ACT, 1867
Ss. 56, 57 & 90: reservation and disallowance
91. the "preamble" to S.91 is the "POGG" clause (peace, order and good
government): It shall be lawful for [Parliament] to make laws for the
peace, order and good government of Canada, in relation to all matters
NOT coming within the subject-matters assigned exclusively to the
Provinces in S. 92. For greater certainty, Parliament may make laws with
regard to matters covered by the following list. However, this list merely
provides examples, and these examples are not to be interpreted by
courts as limiting Parliament's power.
2. Trade and Commerce
2A. Unemployment insurance (added in 1940)
3. Unlimited taxing powers (direct and indirect)
14. Currency & coinage
15. Banking
24. Indians, and lands reserved for Indians
27. The Criminal Law
 92 - 2. Direct taxation
10. Local works and undertakings EXCEPT
a) interprovincial railways & telegraphs
b) international shipping
c) any works that Parliament has declared are
within federal jurisdiction. (“declaratory power”): eg. Grain elevators,
local railways, canals, bridges, some mines, some factories. Used 470 times, but
not since 1961.
13. Property and civil rights (meaning private law)
14. The administration of justice in the province, including
the establishment of all courts except the Supreme
Court of Canada and the Federal Court, and prosecution of criminal
cases.
16. All matters of a merely local or private nature.
92A (added in 1982). The provinces can regulate non-renewable natural
resources, including forestry and electrical energy, and can even regulate
exports. However, the federal government can also regulate exports in this
area, and federal laws are paramount.
 93. The provinces control education, except
that the feds can intervene to protect Roman
Catholic schools in Ontario and separate schools
in any province that existed at the time the
province entered Confederation.
 95. Agriculture and Immigration are
concurrent powers (both the feds and the
provinces can legislate). If there is a conflict, the
federal legislation is paramount.
 96. The federal cabinet has the power to appoint all
superior court judges in the provinces.
 99. Superior court judges cannot be removed except
by joint address of the Senate and House of
Commons. Superior court judges hold office "during good
behaviour" to the retirement age of 75 (to protect judicial
independence).
 100. The salaries of superior court judges are set by
Parliament, not by the cabinet (to protect judicial
independence).
 101. Parliament may establish a Supreme Court of Canada
(which it did in 1875) and other courts to adjudicate federal
laws other than the Criminal Code (eg. the Federal Court,
which hears federal administrative law cases, and the Tax
Court.)
• 109. The provinces own the natural resources within
them.
• 121. There shall be no customs duties or restrictions of
trade between provinces.
• 132. Parliament can make any law to implement British
Empire treaties, even if the law invades provincial
jurisdiction. However, after 1931 the courts interpreted this
section to mean that provincial approval is required for any
non-British Empire treaty which affects matters under
provincial control.
• 133. English and French can be used in Parliament, and
Canada's laws must be in both languages. Likewise, English
or French may be used in Quebec's National Assembly, and
Quebec's laws must be in both languages. Either language
may be used in the courts of Quebec, the Supreme Court of
Canada, the Federal Court and the Tax Court.
 Ss 1-34: The Charter of Rights (you don’t need to
know the content of the Charter until March
class)
 S. 35: Aboriginal rights
 S. 36: commitment to equalization payments, so
that poorer provices can provide adequate
services.
 1867: Canada independent re its internal affairs
 Balfour Declaration (1926) and Statute of Westminster
(1931): Canada recognized as an independent state re
foreign relations
 BNA Act (1867) was an imperial statute, therefore could
only be amended by British Parliament. 1926-1981: many
failed constitutional conferences.
 Victoria Charter nearly successful (1971): Amending
formula would include Parliament, Ontario, Quebec, 2/4
Western provinces, 2/4 Atlantic provinces. Failed when a
new gov’t elected in Alberta, and Quebec premier couldn’t
get cabinet to agree.
 Alberta suggested an alternative: Parliament, and 2/3 of
provinces representing 50% of Canadian population.
 In Canada, there are 5 amending
 Fed gov’t can amend its internal
formulas for the constitution:
constitution
 General amending formula
(seven-fifty): the rest of the
constitution (incl div of powers
& Charter) can be amended with
Parliament, 7 out of 10 provinces
representing 50% of pop.
Dissenting provinces may opt
out, and get reasonable
compensation if amendment
affects culture or education.
 Unanimity formula (Queen, GG,
LGs, composition of SCC, senate
floor rule, federal language
rights, amending formulas
 “some but not all” (eg. language
within province,
denominational school rights,
change in prov. borders)
 Provinces can amend own
constitutions
 38-40 & 42. The 7-50 formula. Most of the narrow constitution,
including the Charter of Rights and the division of powers in ss. 91 and
92 of the C.A., 1867, can be amended with the agreement of seven
provinces representing 50% of Canada's population and
Parliament. (That is, either Ontario or Quebec must be included.) Up
to 3 provinces could opt out of such an amendment. If they opt out of an
amendment which transfers educational or cultural matters to Ottawa,
these provinces shall be compensated financially by Ottawa (Ottawa
must give to the opting-out provinces what they are spending, per capita,
on the opting-in provinces).
 There is a 3-year time limit which begins with the first resolution for
amendment (which could be in any provincial legislature or
Parliament). No amendment may take effect according to this
procedure until at least one year after the first resolution has passed
(unless all governments have passed resolutions).
 No province can opt out of an amendment
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affecting:
- proportionate representation of the provinces in
the House of Commons
-the Senate
-the Supreme Court of Canada
-the extension of existing provinces north
-establishment of new provinces
 41. The unanimity formula. Unanimous agreement of all
provincial legislatures and Parliament is required for
amendments affecting:
 a) the Queen, Governor General and Lieutenant-Governors
b) the "Senate floor rule" (no province can have fewer MPs than
Senators).
c) the use of English or French in S. 133 or the Charter
d) the composition of the Supreme Court, and
e) changes to the amending formulas.
 43. The "some but not all" forumla: Amendments which affect
some but not all provinces need by approved only by the
provincial legislatures affected and Parliament.
 44. Parliament may amend parts of the constitution that affect
only Parliament.
 45. Legislatures may amend parts of their constitutions that
affect only them.
 U.S.: Congress proposes
amendments (2/3 of both houses)
 Proposals have to be ratified by ¾ of
state legislatures, or ¾ of state
constitutional conventions
 Comparison:
U.S. constitution amended 17 times
in 21 decades (rate .08/year)
 Canadian constitution amended 32
times in 13 decades (.23 to 1982, and
9 after) (rate .24/year)
 Canada’s constitution is more
flexible

 Major Can. amendments:
 1940: unempl ins
 1951: old age pensions
 1964: old age pensions broadened to
include supplementary, survivors,
disability (CPP)
 1982: Charter and amending
formulas
 1983: S. 35.1: must be a
constitutional conf including native
peoples before native rights
amended
 1987-1998: 3 amendments to den
school rts in Nfld
 1997: den school rts Quebec
 1993: equality of Fr & Eng in New
Brunswick
 Canada
 1927-1982: six failed attempts
to find a domestic amending
formula
 1971 – Victoria charter came
close
 1982: success achieved after
SCC decision (discussed
later in course)
 Meech Lake & Charlottetown
Accords (discussed later)
 U.S.: 6 amendments proposed by
Congress but not ratified by states,
including ERA (equal treatment of
women in all legislation)
 Impact of court decisions:
1940, 1951 amendments in Canada a
reaction to court decisions
 Civil war amendments in U.S. a
reaction to court decisions
 1918: SCUS decision led to
amendment to prohibit child labour.
1938: Roosevelt threatened to “pack”
court. Court overruled 1918
decision.

 United States
 Washington: cabinet advisory &
responsible to president
 Jefferson: declared that U.S.
could purchase new territory;
never challenged in court
 Political parties developed
without constitutional
amendment
 Congress assumed vast powers
over economy in 1930s and 1940s
 Canada
 Feds assume they have power to do
something under POGG, or
provinces assume they have power to
do something under 92(13)
 After 1995, fed legislation passed to
prevent cabinet ministers from
proposing amendments under 7-50
without support of Quebec, Ont,
B.C., 2/3 prairie provinces, 2/4
Atlantic; Quebec recognized as
distinct society
 Clarity Act (2000)
 Was Dicey right that in the U.S.,
judges are supreme because they
declare the constitution? Does
Dicey’s analysis apply to Canada?
1. Constitutional conventions
-Rule of law
-Judicial independence
-Responsible government
-cabinet responsible to the legislature
-Ministerial accountability
-Cabinet solidarity
-Gov Gen and Lieut Gov’s must act according to the advice of the
first minister, unless that advice is unconstitutional
-The leader of the group in H of C or prov leg that can command
the support of the majority of members becomes first minister and
chooses cabinet. First minister tells GG or LG when to call election,
unless another group can form gov’t
2. The ratio in the judicial decisions about the meaning of the
constitution (eg. the ratio in the cases we’ll be studying in this course)
• Codification of laws
–
–
–
Coutume de Paris (1580)
Confusion after 1759
Royal Proclamation (1763) – civil law
abolished
– Quebec Act 1774 – civil law restored
for private law
– Codification: 1866: Civil Code of
Lower Canada (CCLC)
– 1994: Civil Code of Quebec (CCQ)
Deductive Reasoning
Inquisitorial System (not
in Quebec)
Code, la doctrine,
precedent
 Quebec courts:
 Court of Appeal (s.96)
 Superior Court (s.96)
 Court of Quebec
(provincial – s. 92(14))
 Civil and common law
approaches coming
closer together
Natural Justice & Fairness

Natural Justice

– Nemo judex in sua
causa
– Audi alteram partem

– Jurisdictional
– Abuse of power
– Natural justice
Functions of Admin.
Agencies:
–
–
–
–
Legislative
Administrative
Executive
Judicial or quasi-jud.
Judicial review
• Jud or quasi-jud
– Doctrine of fairness
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Privative clauses
– Can’t hide behind priv
clause if const issue, or
patently unreasonable
Rules of Statutory Interpretation (1)
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Why are rules
needed?
Intent of legislature
“reasonable person”
test
1.Plain meaning rule
2.“golden rule”: avoid
absurdity & inconsistency
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3.What was the
mischief & remedy?
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Specific words help
explain general ones
nearby
Express inclusion of some
items implies exclusion of
items not mentioned
Aids:
– Interpretation statutes
– Definition sections of
statutes
Rules of Statutory Interpretation (2)

More Aids:
– Context in statute
– Other similar statutes
– Legislative history
• Minimal weight. Why?

Books on rules of
interpretation, & legal
dictionaries

French & English text
International
conventions & treaties
(sometimes)
 Preamble (but not
marginal notes)
 Headings (except in
Ontario – excluded by
statute)

Presumptions
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Criminal law: in favour of
accused
Taxation law: in favour of
taxpayer
Against alteration of
common law
Mens rea (guilty mind),
unless express absolute
liability
Against retroactivity
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Against ousting
jurisdiction of courts
For crown immunity (now
mostly replaced by statutes
allowing suits against crown)
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Every word is deliberate
Specific given precedence
over general
More recent > older
Leg. did not intend
drafting error (cts can
correct)
 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)
 Political theory of liberalism
 common law protections for
individual freedom:
 European Renaissance of 15th
 strict attention to rule of law:
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
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
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
 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
 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
 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”
 Treatment of Japanese
 Switzman v. Elbling, 1957: SCC
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: SCC used division
of powers to protect human
rights
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. (will
discuss in more detail in
February class)
 Saumur, 1953: SCC struck down
Que City bylaw about littering,
but aimed at Jehovah’s
Witnesses
 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”
 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
 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.
 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.
 Oil, Chem and Atomic Workers
 Beetz: Demonstrations are not
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.
“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
 February class: seven important Division of Powers
cases decided by the Judicial Committee of the Privy
Council or the Supreme Court of Canada, & Roncarelli
v. Duplessis
 March class: 13 important Charter of Rights cases
decided by the Supreme Court of Canada