Public Law II: The Charter of Rights and Freedoms and the Limits of Public Administration

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1 Public Law II: The Charter of Rights and Freedoms and the Limits of Public Administration Public Law II Thursdays 7:00 10:00 SLH B Syllabus Course Director: Soren Frederiksen sdfred@yorku.ca office: McLaughlin College 126 Course Description This course examines the influence of constitutional and other human rights provisions on Canadian jurisprudence. In particular, it focuses on the Canadian Charter of Rights and Freedoms, including freedom of expression, legal rights, equality rights, language rights, aboriginal people's rights and judicial review of public administration. In studying this material, students will become familiar with the process of judicial review in the context of the Charter and human rights legislation more generally. Students will also learn to analyse statutory and case law so as to understand its legal meaning as well as learn to do limited legal research in this context. The object of this course is to provide a basic foundation in Canadian human rights law for students who may work government, the private sector, or continue on to graduate studies in public policy or the social sciences. Format This course consists of a weekly lecture (2 hours) followed immediately by a discussion session (1 hour). Attendance at lectures and discussion sections is required and attendance will be taken. You are expected to have read all required material prior to the lectures and discussion sections. Readings Peter W. Hogg Constitutional Law of Canada, Student Edition available from the book store. Any edition from 2010 or later is fine, but please do not use earlier editions. There will be no course-pack for this course, but you can expect up to three additional readings each week, along with the appropriate sections of the textbook. These additional readings will be available on-line via Moodle. Please note that this course requires extensive and dedicated reading of the course material. On-line Component - Moodle Use of Moodle is mandatory for this course. You will need it to access the readings and to keep up to date with course information. Information on signing up for Moodle is available at or from the computing help desk.

2 Evaluation Grades will be assigned as follows: 30% Factum (written assignment, due last class) 10% Class Participation 40% Exam (during the exam period) 20% Trial Preparation Assignment

3 Lecture Schedule and Reading List Lecture Discussion Lecture 1 January 9 Introduction to the Course: Civil Liberties using Moodle using QuickLaw and Lexium reading constitutional law reading legal texts Lecture 2 January 16 A Brief History of Human Rights in Canada Hogg Chapter 34 Union Colliery Co. v. Bryden, [1899] AC 580 Quong Wing v. The King (1914), 49 SCR 440 Sauur v. City of Quebec, [1953] 2 SCR 299 Lecture 3 January 23 The Bill of Rights and Provincial Human Rights Legislation Hogg Chapter 35 R. v. Drybones, [1970] SCR 282 The Charter of Rights and Freedoms Hogg Chapter 36 Introducing the Mock Trial Mock trial signup Learning to Read Canadian Case Law Group case-reading exercise Lecture 4 January 30 Application of the Charter Hogg Chapter 37 Tremblay v. Daigle, [1989] 2 SCR 530 R. v. Cook, [1998] 2 SCR 597 Lecture 5 February 6 Interpreting the Charter Hogg Chapter R. v. Oakes, [1986] 1 SCR 103 Kent Roach A DIALOGUE ABOUT PRINCIPLE AND A PRINCIPLED DIALOGUE (2007) 2 U of T Law Jour. 57 Lecture 6 February 13 Freedom of Religion Hogg Chapter 42 Big M Drug Mart Freedom of Expression Hogg Chapter 43 Legal Research I: Using Legal Treatises Group research exercise Legal Research II: Finding Caselaw with Quicklaw Group research exercise Making Legal Arguments Trial preparation assignment due Lecture 7 February 27 Freedom of Assembly and Association Hogg Chapter 44 Delisle Dunmore Group argument construction exercise Trial preparation assignment returned

4 Voting Rights Hogg Chapter 45 Lecture 8 March 6 s. 7: Fundamental Justice Hogg Chapter 47 other readings TBA Lecture 9 March 13 s. 15: Equality Rights Hogg Chapter Vriend v. Alberta Lecture 10 March 20 s. 15 Equality Rights continued Hogg Chapter Language Rights Hogg Chapter 59 Andrew Petter Article Lecture 11 March 27 The notwithstanding clause, s. 33 Hogg Chapter 39 other readings TBA Mock Trial 1 Mock Trial 2 Mock Trial 3 Mock Trial 4 Lecture 12 April 3 Factums due Review Exam Preparation Course Evaluations Mock Trial 5 (if necessary) Notes: 1. This schedule will be updated as the term progresses and changes may be made to the readings as needed. 2. Readings not from the textbook will be available online either through Moodle or through the library. Appropriate directions for accessing the relevant readings will be posted weekly on Moodle. 3. You can expect anywhere from one to three cases or other readings to be assigned each week, along with the textbook.

5 Grading, Assignment Submission, Lateness Penalties and Missed Tests Grading: The grading scheme for the course conforms to the 9-point grading system used in undergraduate programs at York (e.g., A+ = 9, A = 8, B+ - 7, C+ = 5, etc.). Assignments and tests* will bear either a letter grade designation or a corresponding number grade (e.g. A+ = 90 to 100, A = 80 to 90, B+ = 75 to 79, etc.) For a full description of York grading system see the York University Undergraduate Calendar. Assignment Submission : Assignments for this course must be received on the due date specified for the assignment. Assignments are to be handed in to your TA in tutorial. submissions will not be accepted. Lateness Penalty: Assignments received later than the due date will be penalized at the rate of one half letter grade per day. Exceptions to the lateness penalty for valid reasons such as illness, compassionate grounds, etc., may be entertained by the Course Director, but will require supporting documentation (e.g., a doctor s letter). Missed Tests: Students with a documented reason for missing a course test, such as illness, compassionate grounds, etc., which is confirmed by supporting documentation (e.g., doctor s letter) may request accommodation from the Course Instructor. Further extensions or accommodation will require students to submit a formal petition to the Faculty. Important Additional Information All students are expected to familiarize themselves with the following information, available on the Senate Committee on Curriculum & Academic Standards webpage ( York s Academic Honesty Policy and Procedures/Academic Integrity Website Ethics Review Process for research involving human participants Course requirement accommodation for students with disabilities, including physical, medical, systemic, learning and psychiatric disabilities Student Conduct Standards Religious Observance Accommodation

6 Fact Patterns for Mock Trials Please be prepared to pick one of the following fact patterns prior to our second class. Keep in mind that each one is scheduled for a particular date (see the Lecture Schedule, above). 1) Freedom of Religion (Hogg Chapter 42): Mr. Smith has moved to Toronto. He is part of new religious group that has recently been founded in Los Angeles. This group was founded in response to the celebrity culture of southern California. Its members believe in maintaining anonymity, and for this purpose they all change their names to Smith and avoid carrying government identification cards. They also believe that being photographed is corrupting and will therefore not consent to being photographed under any circumstances. As part of his legitimately held religious beliefs, Mr. Smith has challenged the requirement that he be photographed and carry a driver s license in order to drive his car. The Ontario Superior Court has agreed that the requirement of a picture is an unconstitutional violation of his religious freedom, but has held that the requirement that he carry his driver s license with him to drive is not. Both parties are cross-appealing this decision. 2) Freedom of Assembly and Association (Hogg Chapter 44): The global economic crisis has led to a recession in southern Ontario, leaving many people out of work. There have been a series of vocal and occasionally violent demonstrations in Toronto in consequence. Citing fears over damage to property and injuries to people, the Province has passed legislation that requires extensive permits for demonstrations and largely limits them to free speech zones in remote parts of the city. Several months have passed, and a provincial election has been called. Citing this new legislation, the police have arrested demonstrators at political rallies. The Ontario Superior Court has held that this legislation is unconstitutional, but this decision is now being appealed by the province. 3) Fundamental Justice (Hogg Chapter 47): As a result of public fears about street racing, the Federal Government has amended the Criminal Code to create a new offence. This new offence of Extreme Street Racing imposes mandatory prison sentences of 1 to 2 years less a day on those found driving more than 40 km/h over the speed limit, and mandatory penalties of 15 years to life for those who cause death while doing so. Marty Villeneuve was driving back from the cottage on the 400, hit a patch of black ice and slid into another car, killing its driver. He was going 141 km/h as recorded by the GPS system in his car and was prosecuted for street racing. Following constitutional argument, the trial judge refused to impose the mandatory 15-year sentence and instead imposed a sentence of 2 years less a day. The province is appealing this decision. 4) Equality Rights (Hogg Chapter 55): Ontario has enacted a new Human Rights Act. This new act provides extensive protections against discrimination for all the groups listed in s. 15 of the Charter of Rights and Freedoms, as well as analogous grounds, thus echoing the language of the Charter. However, due to an error in drafting, the Act does not protect against discrimination in bars and restaurants. A Toronto bar with a largely Danish clientele has used this loophole to refuse to serve anyone with a Swedish last name. On customer, after being refused service, complained to the Ontario Human Rights Commission, which fined the bar for violating the Human Rights Act. On judicial review, the Ontario Superior Court has sided with the bar and set aside the fine. That verdict is now being appealed by the Human Rights Commission.