CONSTITUTIONAL LAW: CHARTER COURSE SYLLABUS

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1 CONSTITUTIONAL LAW: CHARTER COURSE SYLLABUS COURSE INFORMATION Time: Wednesdays, 2:00pm-3:00pm Fridays, 1:30pm-2:30pm Location: Room 122 INSTRUCTOR INFORMATION: Dr. Bethany Hastie Allard Hall, Room COURSE DESCRIPTION This full year course provides an introduction to Canadian constitutional law. In this section of Canadian Constitutional Law, we will examine the Canadian Charter of Rights and Freedoms. We will spend the first half of the course learning the architecture of the Charter: to whom, when, and how it applies, its scope and limitations, and its remedial options. We will then examine two substantive Charter rights, exploring their nature, scope and limitations: freedom of expression under section 2(b), and the section 7 guarantee to life, liberty and security of the person. 2. COURSE OBJECTIVES This course aims to: Introduce students to Canadian constitutional law, and to the place and purpose of the Charter within our broader constitutional framework. Introduce students to the nature and structure of the Charter and its application. Explore key substantive Charter rights and their evolution within Canadian jurisprudence. Provide an opportunity for critical engagement with fundamental constitutional law concepts through course readings and in-class participation. 3. READING MATERIALS Required text: Canadian Constitutional Law, 4 th ed (Toronto: Emond Montgomery, 2010). Additional readings for the course are posted on the course s Connect website. Please note that readings and cases listed in the course schedule are only a starting point for our work in class. During each lecture, additional material may be introduced, and the ideas and arguments in both the readings and cases discussed and developed. Students should assume that 1 of 10

2 all the material in the reading and discussed in class is examinable. Students are strongly encouraged to attend all classes and take detailed notes. 4. COURSE EVALUATION This course will be evaluated through an examination in April Detailed information on the examination for this course will be provided at a later date. Please note that I have no discretion regarding deferral of examinations or other assessments; a request for deferment of or accommodation for any assignment or examination must be made to the Examinations Committee. For policies related to accommodation requests, please see: 5. GRADING CRITERIA The grading in this course must conform to the Faculty of Law s grading and mark distribution rules. The Faculty of Law provides the following general grading guidelines: 80% to 100% (A- to A+): Exceptional/Excellent performance: strong evidence of original thinking; good organization; capacity to analyze and synthesize; superior grasp of subject matter with sound critical evaluations; evidence of extensive knowledge base. 68% to 79% (B- to B+): Competent/Good performance: evidence of grasp of subject matter; some evidence of critical capacity and analytic ability; reasonable understanding of relevant issues; evidence of familiarity with the readings. 55% to 67% (C- to C+): Adequate/Satisfactory performance: understanding of the subject matter; ability to develop solutions to simple problems in the material; acceptable but uninspired work, not seriously faulty but lacking style and vigour. 50% to 54% (D): Barely adequate understanding, serious flaws, inability to communicate course content. 00% to 49% (F): Inadequate performance: little or no evidence of understanding of the subject matter; weakness in critical and analytic stills; limited or irrelevant use of the material in answers. 6. ACADEMIC INTEGRITY All students are subject to the University s rules on Academic Misconduct: All students are subject to these rules, and are expected to act with academic integrity at all times. 2 of 10

3 Students should be particularly attuned to the University s rules regarding plagiarism ( Plagiarism includes: copying or paraphrasing from another author or source without proper footnoting; copying work from another student; copying your own work used for another course either during this degree or another degree; or otherwise passing off the ideas of another person as your own. Plagiarism is a serious offence; any student caught plagiarizing will be subject to penalties set out in the UBC calendar: Academic honesty is an essential requirement in an institution of higher learning. Academic misconduct may have serious implications not only for your education, but also for your future career in law. Students are encouraged to consult the following resources guide on academic integrity: 7. CLASSROOM EXPECTATIONS The classroom is intended to provide a safe, open and respectful space for the exchange of ideas and collaborative learning. All students are expected to maintain a respectful and professional demeanor in the classroom. Timely attendance is expected in this course. However, if you arrive late or have to leave early on occasion, please endeavor to avoid disrupting the classroom as much as possible. Please ensure that all cell phones are turned off during class. Portable music devices are not permitted in the classroom. Students who are observed to repeatedly use their laptops for nonacademic purposes (Facebook, Twitter, , etc.) during class may be asked to leave the classroom and may result in a reduction of your participation mark. Please do not record lectures without prior permission from the instructor. If you require any accommodations in the classroom, please do not hesitate to contact me. 8. COMMUNICATION Students are encouraged to me with questions and/or to make an appointment to discuss any questions or queries related to the course in person. I will strive to respond to all s promptly, ideally within hours. Please note that if a response to your inquiry cannot be sufficiently answered in a few sentences, I will request that you make an appointment to see me in person to discuss the matter. I will communicate with the class as needed through our course website on Connect and its system. Please ensure you have the correct assigned in Connect and to your UBC account. 3 of 10

4 9. SCHEDULE AND DESCRIPTION OF CLASSES Wk Date Topic, & Class 1 January 6 Introduction to the Charter Casebook, pp Today s class introduces us to the ongoing debates and positions surrounding the Charter, and its place and purpose in Canadian law and society. This class will serve as an introduction to the multiplicity of issues we will explore throughout the course. January 8 The Framework of the Charter Casebook, pp Frank Iacobucci, The Charter: Twenty Years Later (2002) 21 Windsor YB Access Just 3. This class will provide a basic overview of the framework of the Charter, which we will go on to explore in greater depth throughout the course. Today s class will focus particularly on the approach taken to the interpretation of rights under the Charter. The article by Justice Iacobucci builds on an understanding of the interpretation of rights under the Charter by considering its influence, impact and evolutionary relationship within Canada. 2 January 13 Applicability of the Charter Casebook, pp RWDSU v Dolphin Delivery McKinney v University of Guelph Godbout v Longueuil Today s class will begin our examination of the applicability of the Charter who it applies to, what kind of conduct or acts it applies to, and who is protected by it. Today we will focus on who the Charter applies to, and particularly, on who is included as a government actor under s.32. January 15 Applicability of the Charter Casebook, pp Eldridge v British Columbia (Attorney General) Vriend v Alberta Hill v Church of Scientology of Toronto 4 of 10

5 Today we continue our examination of applicability issues, focusing on what kinds of conduct or action are subject to Charter scrutiny. We will also consider the application of the Charter to the courts and the common law. 3 January 20 Applicability of the Charter Casebook, pp Canada v Khadr, 2008 SCC 28. Singh v Minister of Employment and Immigration, [1985] 1 SCR 177 at , Today we will consider issues surrounding territoriality, as well as who is protected by the Charter. While we will continue to explore issues of protection in the topics of standing and in respect of substantive rights later in the course, today s class will focuses on preliminary understandings of protection based on the citizenship status and territorial location of individuals through the Khadr and Singh cases. January 22 Standing: Who Can Raise Charter Issues? Casebook, pp54-55, R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295 at , Minister of Justice (Can.) v. Borowski, [1981] 2 SCR 575. Charter, s24(1), s52(1). This class will outline the issue and approach to standing who can raise a Charter challenge. In this class, we will canvass the basic principles and issues related to standing. 4 January 27 Standing: Who Can Raise Charter Issues? Jane Bailey, Reopening Law's Gate: Public Interest Standing and Access to Justice (2011) 44:2 UBC L Rev 255. Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45. Building from our previous class on standing, today we will focus on the issue of public interest standing, and the recent Supreme Court of Canada decision in SWUAV. January 29 No Class Reorientation Day 5 of 10

6 5 February 3 Defining Limitations: Section 1 Casebook, pp R v Nova Scotia Pharmaceutical Society R v Oakes Today we will begin discussing limitations on the protection of Charter rights. An infringement on a Charter right may be justified under section 1. This reflects the balanced and purposive approach taken to understanding fundamental rights in Canada. Today, we will discuss the two elements laid out under section 1: that limits are prescribed by law and that the limits are demonstrably justifiable in a free and democratic society. In respect of the latter element, we will focus on the R v Oakes, which sets out the test for determining a reasonable and justifiable infringement under section 1. February 5 Defining Limitations: Section 1 Casebook, pp Edmonton Journal v Alberta Irwin Toy Ltd v Quebec Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, paras 1-13, This class will explore the developments and evolution of the Oakes test since its development nearly 30 years ago. The casebook provides an overview of its development during this time, while the Alberta v Hutterian Brethren of Wilson Colony case discusses the issue of minimal impairment in greater depth, and provides an updated view of the court in respect of section 1. 6 February 10 Remedies and Enforcement of Rights Casebook, pp Schachter v Canada Vriend v Alberta M v H Today s class will introduce the remedial options available where a Charter rights is infringed and not saved by section 1. We will focus in this first class on remedies under s.52 nullification of laws. We will canvass the court s options of reading in, reading down and striking down legislation under this section. February 12 Remedies and Enforcement of Rights Casebook, pp Canada v Hislop 6 of 10

7 7 February 17 R. v. Ferguson, 2008 SCC 6, paras Today s class will continue our exploration on remedies under s.52 declarations of invalidity. This class will discuss issues of retroactive versus prospective relief, as set out in the Hislop case. We will also discuss constitutional exemptions in the Ferguson case, and the use of temporary suspensions on declarations of invalidity that courts employ as part of their institutional dialogue with Parliament. No Class Reading Week February 19 8 February 24 Remedies and Enforcement of Rights No Class Reading Week Casebook, pp Little Sisters Book and Art Emporium v Canada Doucet-Boudreau v Nova Scotia Vancouver (City) v. Ward, 2010 SCC 27 Today s class focuses on remedies available under s.24(1) of the Charter the ability for courts to grant such remedies as it considers appropriate and just in the circumstances to individuals for breaches of their Charter rights. Little Sisters and Doucet-Boudreau set out the primary principles and elements of determining an appropriate remedy under s.24(1). Ward considers the specific remedial option of damages under s.24(1). February 26 Freedom of Expression: Overview Casebook, pp R v Keegstra RWDSU v Dolphin Delivery Irwin Toy Ltd v Quebec Today s class will introduce the right to freedom of expression guaranteed under s.2(b) of the Charter. We will discuss the purpose of the guarantee, as well as its general scope and limits. 9 March 2 Freedom of Expression: Hate Speech Casebook, pp R v Keegstra Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, paras 8-11, , of 10

8 In today s class, we will examine another particular category of jurisprudence in relation to freedom of expression: hate speech. In addition to canvassing what constitutes hate speech, and how this is balanced against the right to freedom of expression, the readings for today also consider some distinct features of Canada s approach to this issue, compared to other countries like the United States. March 4 Freedom of Expression: Explicit Expression Casebook, pp R v Butler R v Labaye Today s class focuses on the regulation of sexually explicit expression. Like with hate speech, this category requires courts to balance freedom of expression against criminal offences enacted to protect against specific and societal harms. 10 March 9 Freedom of Expression: Access to Public Property Casebook, pp Montreal (City) v Quebec Inc Greater Vancouver Transportation Authority v. Canadian Federation of Students British Columbia Component, 2009 SCC 31, paras 1-12, Having canvassed some of the substantive issues pertaining to freedom of expression, today s class will focus on exploring issues related to the geographic or territorial space in which communication or freedom of expression occurs. March 11 Section 7: Principles of Fundamental Justice Casebook, pp Reference re Section 94(2) of the Motor Vehicle Act Canada (Attorney General) v Bedford, 2013 SCC 72, paras 1-6, Peter Hogg, The Brilliant Career of Section 7 of the Charter (2012), 58 S.C.L.R. (2d) 195. Today s class will introduce section 7, the right to life, liberty and security of the person. In particular, we will focus on the meaning ascribed to the principles of fundamental justice under section 7. The excerpt from Reference re Section 94(2) of the Motor Vehicle Act presents a discussion on the meaning of principles of fundamental justice from early Charter jurisprudence. As the court notes in Bedford, this meaning has evolved over the 30 years of Charter jurisprudence in many ways, and today focuses particularly on identifying three potential issues: 8 of 10

9 arbitrariness, overbreadth, and gross disproportionality, each of which are discussed in both Beford and the Hogg article. 11 March 16 Section 7: Bodily Integrity and Security of the Person Casebook, pp R v Morgentaler R v Rodriguez In this class, we will begin examining cases related to the protection of bodily integrity and dignity with the Morgentaler and Rodriguez decisions. Though characterized more traditionally as topics dealing with bodily integrity, notions of dignity and decisional autonomy are more prevalent in discussions on these and related topics today, and so we can examine and understand how these decisions articulate important principles under section 7 related not only to bodily integrity in the strict sense, but to broader ideas about human dignity and personal autonomy. March 18 Section 7: Bodily Integrity and Security of the Person Carter v Canada (Attorney General), 2015 SCC 5. Building from our discussion of Rodriguez, today s class will discuss the recent Carter decision at the Supreme Court of Canada. We will consider how section 7 jurisprudence evolved in the time span between these two decisions, as well as the importance of evolving social understandings or changing social conditions, scientific data, and other evidence relevant to assessing the Charter claim. 12 March 23 Section 7: Decisional Autonomy and Liberty Casebook, pp B(R) v Children s Aid Society Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44, paras 1-2, R v Malmo-Levine, 2003 SCC 74, paras 1-6, This class will build from the previous line of cases to explore other ways and issues in which the courts have emphasized the relationship between personal (or decisional) autonomy and section 7 protection, particularly in examining the liberty interest. We will also revisit and discuss Bedford and Carter as cases concerned with decision autonomy and liberty. March 25 No Class 9 of 10

10 13 March 30 Section 7: Security of the Person vs National Security Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. Kent Roach, Section 7 of the Charter and National Security: Rights Protection and Proportionality versus Deference and Status ( ) 42:3 Ottawa L Rev 337. In this class, we will discuss the threat of terrorism and national security in its relationship to section 7. Unlike developments in domestic criminal law and related issues, Charter cases under section 7 that deal with issues of national security and immigration appear to present unique challenges for the courts. As we will see through the Charkaoui case, threats of terrorism have given rise to various immigration law reforms, many of which have been subject to Charter scrutiny. The security certificate regime at issue in Charkaoui considers the balancing of national security interests against the fundamental rights protected by section 7. April 1 Special Topics in Charter TBA Our last two classes of the year will focus on contemporary topics related to the Charter. 14 April 6 Special Topics in Charter TBA Our last two classes of the year will focus on contemporary topics related to the Charter. April 8 Review In our final class of the term, we will review the semester s material and prepare for the exam. We will revisit the topics from this term, outlining the basic principles, elements and tests that apply to the framework and substance of the Charter as we have explored throughout the term. Students are encouraged to come to class having reviewed this term s materials and with any questions on the substance of the materials, as well as on the process of the examination in general. 10 of 10