Study Sheet for POLS 3605 3.0 Final Exam, April 28, 2005

Following is a brief study guide to the exam.   A complete study guide consists of the overheads for each of the classes.

Important Questions:

-What are human rights?  Why are they important in a democracy?  What does “property & civil rights” in s.92(13) of CA, 1867 refer to?  What government(s) is/are responsible for legislating regarding human rights?
-What is the impact of Supreme Court of Canada decisions (and decisions of other courts) on the democratic values of participation and inclusiveness?
-What is Justice Ian Binnie's assessment of judicial activism?
-Legal protection of civil liberties before the Charter in Canada.  The Canadian Bill of Rights.  The events leading to the entrenchment of the Charter.
-Contents of the Charter.
Criticisms of the Charter idea: Mandel, Knopff-Morton.
-To what bodies does the Charter apply as a result of s. 32?
-What can Parliament and legislatures do as a result of s.33?
-What remedies can courts impose as a result of a Charter infringement under s. 24?
-What are our democratic rights?  What are the main legal issues regarding democratic rights?
-Fundamental Freedoms: What is the nature of Freedom of Expression in s.2 of the Charter?  What is the relation between freedom of expression and language rights?  What are the implications of the guarantee of freedom of religion in the Charter?
-Legal Rights:  What does “fundamental justice” refer to in s.7?  What is the relation between “fundamental justice” and “due process”?  What is the relation between “fundamental justice” and “natural justice?”  (The two principles of fundamental justice are audi alterem partem (hear both sides) and nemo judex in sua causa (no one shall be a judge in his/her own cause).  What is the relation between s. 7 and ss. 8-14?  What are some of the “new” legal rights added by the Charter that were not contained in the Canadian Bill of Rights?
-Gavigan article:  What is critical legal theory?  Why does Gavigan argue that feminists who use the Charter to achieve particular ends sometimes find themselves making contradictory arguments?
-What are Thomas Flanagan's three models of aboriginal sovereignty?
-Why does Bakan think that the Charter is not likely to act as a vehicle for pursuing social equality?  What are the attitudes of Canadians towards issues of equality?  Why does Michael Mandel think that the charter is not likely to reduce social inequality?
-Who are the major Charter critics, and what is your assessment of their arguments?  What does Sigurdson think of the critics?
-What is meant by "charter dialogue"?  Is it really happening?
-What factors other than the wording of the law affect the outcome of judicial decisions, according to the authors of Final Appeal?
-Has the Charter been worth all the trouble of creating it?
-Do you think there's an agenda for reform resulting from the Charter?

Cases you should recognize:
•Alberta Press Bill reference (1938) (Duff Doctrine enunciated but not supported by majority)
•Saumur v. Quebec (1953) (Quebec city by-law requiring permission to distribute literature)
•Switzman v. Elbling & A.G. Quebec (1957) (“padlock” law)
•Roncarelli v. Duplessis (1959) (Duplessis cancels Roncarelli’s liquor license.  Issue: rule of law)
•Robertson & Rosetanni v. The Queen (1963) (Lord’s Day Act and Bill of Rights)
•Regina v. Drybones (1970) (Offences created for Indians by Indian Act & Bill of Rights)
•A.G. Canada v. Lavell and Bédard (1974) (Differential treatment for Indian women in Indian Act
    & Bill of Rights)
•A.G. Canada & Dupond v. Montreal (1978) (freedom of expression under Duff Doctrine and 30-
   day ban of demonstrations by Montreal)
Charter cases:
•Operation Dismantle Inc. v. the Queen (1985) (issues: does Charter apply to cabinet decisions
 made pursuant to prerogative power?  Is it legitimate to use a Charter case
 for publicity purposes?)
•The Queen v. Big M Drug Mart Ltd. (1985) (Lord’s Day Act and Freedom of Religion under the
 Charter.  Status of Bill of Rights precedents.  Is purpose important as well
 as effect of legislation?  Shifts responsibility for day of rest legislation to provinces.)
•Edwards Book and Art Ltd. v. the Queen (1986)  (status of provincial weekly day of rest
 legislation: indirect & unintentional violations of Charter.)
•The Queen v. Oakes (1986).  (Developed “Oakes test” for application of s. 1.  I What is the
 objective of the impugned legislation?  Is it pressing and substantial?  II a) Is there a
 rational connection between the objective and means used?  b) Is there minimal
 impairment of rights?  c) Is there an overall balance between the harm done by limiting
 rights, and the good done by achieving the objective?  Why were Oakes’ rights violated?
 What is a reverse onus clause?)
•Retail, Wholesale and Department Store Union v. Dolphin Delivery (1986) (Are the courts part
 of “government” in s. 32?  Does Charter apply to the common law re public law?  What
 about the common law re private law?)
•McKinney v. University of Guelph (1990) Does the Charter apply to universities?  Does the
 Charter apply to provincial human rights acts?  Is the failure of provincial governments to
 prevent compulsory retirement a violation of equality?  If so, can this be justified under   s.1?
•R. v. Keegstra (1990) (Is Crim. Code provision prohibiting “wilfully promoting hatred against an identifiable group” a violation of freedom of expression?  If so, can it be upheld under s. 1?)
•R. v. Zundel (1992) (Is Crim. Code provision prohibiting “spreading false news ” a violation of freedom of expression?  If so, can it be upheld under s. 1?)
•R. v. Butler (1992) (What is the relation between obscenity and pornography?  Is the Crim. Code definition of obscenity void for vagueness?  Does the prohibition of obscene materials in the Crim. Code violate freedom of expression?  If so, can this be upheld under s. 1?)
•R. v. Sharpe (2001) (Does the criminal code provision prohibiting possession of child pornography violate Sharpe's right to freedom of expression, and if so, can the legislation be saved under S. 1?  What did the Court "read in" to the legislation?)
•Quebec v. Ford et al (1988) (Did Quebec’s prohibition of English on outdoor signs violate the Charter?  If so, can it be justified under s. 1?)
•RJR-MacDonald Inc. v. Attorney General of Canada (1995) (Does the prohibition of tobacco advertising violate freedom of expression?  If so, can it be justified under s. 1?)
•Singh v. Minister of Employment and Immigration (1985) (Does the deportation of unsuccessful refugee claimants without granting them an oral hearing violate s. 7 of Charter and Bill of Rights?  If so, can it be justified?)
•Hunter v. Southam (1984) (S. 8 is essentially a right to privacy.  What must happen before a government official can search a private home or office?)
•Valente v. The Queen (1985) (The three essential conditions of judicial independence are security of tenure, financial security, and institutional independence.)
•Reference re B.C. Motor Vehicle Act (1985) (What is an absolute liability offence?  Does the absolute liability offence in this case violate s. 7?)
•Askov v. The Queen (1990) (What is unreasonable delay?  What is the test for unreasonable delay?  How did the SCC handle social science evidence?)
•Rodriguez v. Attorney-General of British Columbia (1993) (Does the Crim. Code section prohibiting assisted suicide violate s. 7?  If so, can it be justified under s. 1?)
•R. v. Mills, 1999 (Do limits to the accused’s right to obtain confidential records of a sexual assault complainant violated the right to a fair trial?  If so, can these limits be justified under s. 1?)
•Andrews v. Law Society of British Columbia (1989)  (Impugned legislation:  Law Society of B.C. regulation requiring lawyers to be citizens.  Why did the Chater apply to this regulation?  What approach to equality did the SCC adopt?  What is the test for the application of S. 15?  [What is a 'distinction' resulting in discrimination?  What are 'enumerated and analogous grounds?]  Did Andrews win?  Why?)
•Turpin (1989)  (Why was Turpin not discriminated against?)
•Ontario Roman Catholic High School Funding Case (1987)  (Did the SCC overrule an earlier decision of the JCPC?  Is any one part of the Charter superior to any other part?  What is the impact of S. 29 of the Charter?  Who won?)
•Schachter v. Canada (1992)  (Does availability of paternity leave for adoptive fathers and not birth fathers violate S. 15?  If so, is the correct remedy to "read in" rights for birth fathers, even if this means the government must spend a significant amount more?  How did the Federal Court of Appeal and the SCC differ in their answers to this question?  Note:  this is a key case regarding whether the courts should be activist in requiring governments to spend more money to enforce Charter rights.)
•Symes v. Canada (1993)  (Is the limit to the child care deduction in the Inc. Tax Act discrimination based on sex?)
•Re Thibaudeau and the Queen (1995)  (The Income Tax Act, prior to 1995, with regard to divorced couples forced the spouse receiving maintenance payments to pay tax on these payments, rather than the spouse making the payments.  Is this discrimination based on sex, given that most of those receiving maintenance payments are women?  Why was Thibaudeau in a different situation than most women?  Who won?  How did the federal government handle the result?)
•Egan et al. v. the Queen (1995)  (Impugned legislation:  Section of Old Age Security Act that defines "spouse" as couples of the opposite sex.  What was Egan's argument?  Who won?)
•Vriend v. Alberta (1998)  (Impugned:  Alberta Individual Rights Protection Act, and its failure to include sexual orientation on list of prohibited grounds for discrimination.  Case important because what is at stake is what is not in legislation.  What was the outcome of the case?  What was the reaction of the provincial government?  Did public opinion have anything to do with the eventual decision of the Alberta government about what to do?)
•Eldridge v. British Columbia (Attorney General) (1997)  (Issue:  does failure of B.C. gov't to provide interpreters to deaf persons violate the equal right to access to health care?  How does SCC answer this question?)
•Quebec Secession Reference (1998)  (What were the questions the Supreme Court had to answer?  How did they answer them, and why?  Should they have given such detailed answers?)
•M. v. H. (1999)  (Do homosexual couples have a right to use the Ontario Family Law Act to claim support from a former partner?  What was the remedy ordered by the court?)
•Morgentaler v. the Queen (1988)  (Does the abortion section of Crim Code violate S. & of Charter?  What are the four different answers the court gives to this question?  What is the reasoning of the different groups of judges?  Is the outcome of the decision clear?)
•Borowski v. Minister of Justice of Canada (1988)  (What was Borowski's argument?  By the time his case reached the SCC, was the case moot?  Why?  What is the test that the SCC developed for mootness in the Borowski case?)
•Winnipeg Child and Family Services v. G. (D.F.) (1997)  (Can a judge use a common law remedy to protect a fetus that is endangered?  Why or why not?  In this particular case, did the fetus receive protection?)
•Tremblay v. Daigle (1989):  (Who wanted to prevent Daigle's plan to have an abortion?  What argument did he make pursuant to the Quebec Charter of Human Rights and Freedoms?  Did the SCC expedite the application for leave and the actual hearing?  What happened just after the lunch break during the hearing?  What was the court's decision?)
•R. v. Sparrow (1990)  (What is S. 35(1) of the CA., 1982?  Does S. 35(1) protect the right that Sparrow claimed to fish with a drift net too large for the fishing regulations?  What is the test for S. 35(1)?)
•Van der Peet v. The Queen (1996)  (Is the selling of fish by native fishermen and women protected by S. 35(1)?  Why or why not?  Even though Van der Peet lost, was there anything gained by native litigants?)
•Delgamuukw v. British Columbia (1997)  (What were the major questions to be resolved in this case, and how did the SCC resolve them?  What has been the impact of this case for native land claim negotiations?)
•R. v. Marshall (1999)  (Issue:  interpretation of treaties of 1760-1.  What was the impact of historical evidence about the native understanding of the treaties, based on oral tradition?  What was the political outcome of this case?)
•R. v. Marshall (motion for Rehearing and Stay) (1999)  (Should the Supreme Court have commented on the motion for rehearing?)
•Labour Trilogy of 1987 -- Alberta Labour Reference, Public Service Alliance, Sask. Dairy Workers.  (Does the right to freedom of association imply a right to strike?  Why or why not?  What did the majority think about the intervention of courts into labour disputes?  Why did Dickson and Wilson dissent?  How would the courts decide right to strike cases if Wilson and Dickson had been in the majority?)
•Lavigne v. Ontario Public Service Employees Union (1991)  (What is the Rand Formula?  What was Lavigne's argument?  Did he win in the end?  How much did this case cost the NCC and the unions?
•Law v. Canada (1999)  (What did the Supreme Court add to the Andrews test as to whether a law violated the Charter's equality provisions?)
•Little Sisters (2000)  (The court distinguished between an unconstitutional law, and the unconstitutional application of that law.  How were customs officials applying the law unconstitutionally?)
•Dunmore v. Ontario (2002)  (Does the government have a positive duty to include farm workers in labour relations legislation?)
•RWSDU v. Pepsi (2002) (Will the Supreme Court attempt to interpret private law in a manner consistent with the Charter?  What does this have to do with freedom and expression and freedom of association of members of unions?)
•Doucet-Boudreau v. Nova Scotia (2003) (How does this decision affect our understanding of the Supreme Court's approach toward the scope of appropriate remedies for Charter violations?)
•Syndicat Northcrest v. Amselem (2004) (What did this case add to the Court's interpretation of freedom of religion?)
•Can. Fed. of Children, Youth and the Law (2004) (Why did the majority think that although a law that allows spanking violated security of the person, that law passes the Oakes test?)
•Newfoundland (TB) v. N.A.P.E. (2004) (Does having to cope with a serious financial crisis sometimes justify limiting a right, if that right is limited as little as necessary?)
•Regina v. Powley (2004) (What is the Court's approach to Metis rights?)
•Haida Nation v. B.C. (2004) (Does the Crown have a duty to consult and accommodate Aboriginals before taking action that may limit a yet-to-be established Aboriginal right?)