FINAL. EXAMINATION - APRIL LAW 201 SECTION 4

Transcription

1 THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW FINAL. EXAMINATION - APRIL 2015 LAW 201 CANADIAN CONSTITUTIONAL LAW FEDERALISM, CHARTER and ABORIGINAL AND TREATY RIGHTS SECTION 4 DR. JEFFREY MEYERS and PROFESSOR GORDON CHRISTIE TOTAL TIME: 3 HOURS plus 25 MINUTES READING TIME

2 THIS EXAMINATION CONSISTS OF 6 PAGES PLEASE ENSURE THAT YOU HAVE A COMPLETE PAPER THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW APRIL EXAMINATION 2015 LAW 201 (Constitutional Law) Section 4 Dr. Jeffrey B. Meyers TOTAL MARKS: 100 THIS TEST COVERS THE CHARTER MATERIALS TAUGHT IN THE SECOND TERM ONLY TIME ALLOWED: TWO HOURS and 15 MINUTES READING TIME *NOTE: YOU WILL HAVE AN ADDITIONAL HOUR LONG (PLUS 10 MINUTES READING TIME) EXAMINATION COMPONENT TREATING THE CONSTITUTIONAL STATUS AND RIGHTS OF ABORIGINAL PEOPLE IN CANADA AS TAUGHT BY PROFESSOR G. CHRISTIE NOTES: ************** 1. This exam is open book. That means that you are entitled to have your textbook, the supplement, Constitution Act, , your notes and any other written material you wish except for the Ho.g textbook (and copies of excerpts therefrom). You may bring the PowerPoint and Lecture Notes I have put up on Connect at your request. But, you are being tested on the case law in the textbook and other written materials assigned over the course of the term. 2. Read each question carefully, and make sure you understand what you are being asked before you begin your answer. 3. Be careful to budget your time. A brilliant answer on one question cannot make for the failure to answer another question. 4. Your grade in this exam will account for 100% of your final grade for this course provided that it is the same or higher than your grade on the December Examination. If your grade on this exam is lower than your grade on the December Exam, it will account for 75% of your final grade and the other 25% will reflect the higher scoring December Exam. 5. Part I of the Exam addresses the Charter (100 marks) and Part II addresses the Constitutional Status and Rights of Aboriginal Peoples in Canada (100 marks).

3 LAW 201, Section 4 Page 2/6 6. There is choice built into Part I of this exam. You do not have to answer all of the questions. You need only answer enough questions to permit a mark out of 100. Any additional questions answered will not be tabulated. 7. Choose ONE question from Part A for 40 marks and ONE question from Part B for 60 marks. 8. The questions on this exam contain room for creative reflection upon, and argument from, the course material. Your answer will be evaluated on your ability to do both. WHETHER YOU ARE WRITING BY HAND OR USING EXAMSOFT ALWAYS INDICATE WHICH QUESTION YOU ARE ANSWERING CLEARLY AND PROMINENTLY AT THE OUTSET OF EACH ANSWER.

4 LAW 201, Section 4 Page 3/6 QUESTION 1 (40 Marks) PART A Is there common thread or basic consistency in the s. 2(b) jurisprudence as it is treated in the context of commercial, obscene and terror speech? Frame your argument with reference to at least three of the Supreme Court of Canada decisions cases we have examined this term. QUESTION 2 (40 Marks) When and how, if ever, can the common law be subject to Charter review? Do you find the distinction that the Supreme Court draws between formal Charter review and Charter Values scrutiny convincing? Why or why not? Answer with reference to at least two of the cases s. 32 cases we have considered this term. AND, QUESTION 3 (60 Marks) PART B You work for the BC Ministry of the Attorney General and have been asked to give a legal opinion on four provisions in the Province s proposed Efficient Public Sector Act. The first of the proposed provisions you have been asked to opine on is in the definitions section of the Act (s. 1). It defines essential services as functions or undertakings necessary to the efficient operation of the Government of BC and the public services it provides ; essential service workers as persons employed in connection with the provision of essential services ;

5 LAW 201, Section 4 Page 4/6 and, public services as including the provincial health, education and welfare system as well as all mass transportation and emergency services. The second provision (s. 2) you have been asked to opine on, provides as follows: It is an offence, punishable by fine or imprisonment, for essential service providers to participate in work stoppage, strikes or which substantially hinder or interfere with the operation of the Government of BC and the public services it provides. The third provision (s. 3) you have been asked to opine on, provides as follows: In the event of a work stoppage, strike or walkout in contravention of this Act, the Lieutenant Governor in Council may issue orders requiring the hiring of replacement personnel for the performance of essential services and to protect essential services from interruption or interference by secondary strikes or picketing. Finally, the fourth provision (s. 4) you have been asked to opine on provides, Essential services shall be designated by order of the Lieutenant Governor in Council with appeal as of right to the Supreme Court of BC. The Deputy Minister has advised you that the Minister wants his briefing book to advise him as to whether ss. 1-4 of the Act are likely to be upheld by the Supreme Court of Canada if challenged. He further requests that as part of your analysis you include any recommended changes or amendments to the existing language of the proposed provisions that may redress any infirmities in the language. OUESTION 4 (60 Marks) You are general counsel for UBC and have been asked to give a legal opinion on the University s exposure to a potential s. 15 claims by a group of disgruntled dental school applicants who were denied admission to the program. The disgruntled applicants are from the lower mainland and argue that they would have been admitted to the faculty had it not been what they describe as a discriminatory admission policy which admits an annual minimum baseline of 20% of students from urban and northern communities. For its part, the Faculty of Dentistry and Oral Surgery has furnished you with what looks to be reliable statistical evidence to suggest that rural and northern students are traditionally under represented in dentistry school and the profession generally. The Dean of the faculty advises you that the policy is necessary for two reasons. 1) To address the past exclusion of rural and northern students from the dentistry school and profession; and, 2) To encourage better dental services in traditionally underserviced rural and northern communities. You have also been given a report by the College of Dental Surgeons that states that northern and rural areas have half the dentists per capita than do the Lower Mainland and Vancouver

6 LAW 201, Section 4 Page 5/6 Island. The same study also contains evidence that dentists with significant and longstanding connections to rural and northern communities tend to stay and build their practice in their home communities while non-rural and non-northern dentists tend to leave rural and northern practice within 3-5 years. In your answer you do not have to address standing (s. 32) or any other Charter issues other than the potential strengths andlor weaknesses of the threatened s. 15 claims. If relevant or applicable, you should address s. 1. At minimum, your answer should consider whether or not the plaintiffs have a reasonable likelihood of success in convincing the Court they are entitled to s. 15 protection and if so, whether the University has a valid defense to any apparent breach of the claimant s s. 15 rights. QUESTION 5 (60 Marks) Professor Bakan describes judicial review as a rhetorical shell game that obscures the real operation of power and reinforces, in a circular and self-serving fashion, the legitimacy of the judicial review itself: In interpreting the Charter, the Supreme Court usually follows two steps first, purposive analysis of a right or freedom, and second, application of section 1 criteria laid out in Oakes...The presumption underlying each step is that the Court can give the admittedly indeterminate provisions of the constitutional test sufficient meaning to constrain judicial choice and discretion. This approach then legitimates judicial review because it requires judges only to give effect to constitutional prescriptions, not substitute their views and values for those of democratic bodies. I have argued that there are two fundamental flaws in this scenario. First, nobody, including judges, can define the purpose of aright or freedom, or the criteria to be relied on in applying s. 1, without making controversial value choices. Second, the purposes identifies in the case and the section 1 criteria established in Oakes are, like the constitution itself, vague and general, to the point of being indeterminate. (Bakan, p. 30). Do you agree or disagree with Professor Bakan? Frame your answer with reference to the development of the Oakes test in the jurisprudence we studied this term. QUESTION 6 (60 Marks) Drawing on your reading of Romanow, Whyte, Leeson & al., Canada Notwithstanding, consider how the historical events leading to, and culminating in, the patriation of the Charter (i.e. the key

7 LAW 201, Section 4 Page 6/6 concerns and tensions expressed in the framing process) have, or have not, been reflected in the ss. 2(b) and 15 case law we studied this term. OUESTION 7 (60 Marks) Drawing on your reading of Professor Mandel s The Charter of Rights and the Legalization of Politics in Canada or Professor Bakan s Just Rights, consider whether, and how, if at all, the ideological critique of the Charter might, or might not be, meaningfully developed in the context of the Supreme Court of Canada s recent decisions in Carter v. Canada (AG) (2015) and Saskatchewan Federation of Labour v. Sask (2015). END OF CHARTER SECTION OF EXAMINATION

8 Page 1 of 3 THIS EXAMINATION CONSISTS OF 3 PAGES PLEASE ENSURE THAT YOU HAVE A COMPLETE PAPER THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW FINAL EXAMINATION - APRIL 2015 LAW 201 Canadian Constitutional Law: Aboriginal and Treaty Rights Section 4 Professor Gordon Christie TOTAL MARKS: 100 THIS EXAM COVERS ABORIGINAL AND TREATY RIGHTS Time: 10 minutes of reading time 60 minutes to write/type ******************* NOTES: 1. This portion of the exam is open book. You can bring any written material into the exam. 2. Answer one (1) of three (3) questions.

9 Page 2 of 3 LAW 201, Section 004 Choose 1 (one) of the following 3 questions to answer. possible, to material covered in Constitutional Law 201. Please restrict yourself, as much as 1. A Métis collective historically present in the southern regions of a prairie province are concerned about the potential impact upon their rights should an existing east-west pipeline be used as the basis for establishing a new route east for bitumen mined from the tar sands. The Energy East system (proposed by TransCanada Pipelines Ltd) will convert an existing natural gas pipeline to oil service between Burstall, Saskatchewan and Cornwall, Ontario. Other new pipelines will have to be built as well, so that this line can connect with tar sands productions in northeastern Alberta and northwestern Saskatchewan and refineries in southern Quebec and the maritimes. Assume that both (a) the existing natural gas line runs through lands traditionally used by this Métis collective, and (b) one of the new oil pipelines would likewise run through some of this territory. What legal avenues do you anticipate the Métis collective could make use of should they wish to challenge this proposal? Discuss the avenues available, including in your discussion the prospects that their challenges are (to some degree) successful. 2. EastShore First Nation [ESFN] in southern British Columbia has plans to build a private hospital, funded by investors, to take advantage of the medical tourism business (whereby Canadians travel to some travel destination so as to enjoy a vacation while simultaneously receiving medical treatment that they might otherwise have to wait months or years to receive within the overburdened Canadian universal health care system). This private hospital would be built entirely on their reserve lands, right next to their world-renowned winery and spa. A Canadian could travel to ESFN, for example, to get a hip replacement while enjoying fine local wines during a week-long rehabilitation period right after the operation. What legal tools made available or potentially made available under section 35 might ESFN need to make use of if this project is to have any prospect of going ahead? With what legal battles do you imagine they would find themselves engaged? What do you think the prospects would be of their succeeding in mustering the legal strength necessary to push ahead with this project? Explain and defend your answer. 3. As the Tsilhqot in Nation case worked its way up through the levels of court the Tsithqot in nation pulled off the table any claims that touched on existing private property interests within their claimed territory. These private interests were not extensive and the Tsilhqot in did not feel it was advisable to have Canadian courts faced with the difficult matter of working out how private property interests might intersect with Aboriginal title it was better to leave that matter for future litigation (or negotiation).

10 EN]) OF EXAMINATION LAW 201, Section 004 Page 3 of 3 Aboriginal title on existing private property interests, will deal with this difficult How do you think future courts, inevitably faced with this question of the effect of matter? Be sure to explain and defend your answer.