AP/PPAS A Public Law II: The Charter of Rights and Freedoms and the Limits of Public Administration

Transcription

1 AP/PPAS A Public Law II: The Charter of Rights and Freedoms and the Limits of Public Administration Course Director: Danny O Rourke Class Hours: Monday and Wednesday 4pm-7pm Class Location: 133 South Ross Office Hours and Location: 232 McLaughlin College, (by appointment) rourke@yorku.ca Course Description: This course is designed to examine the main provisions in the charter and discuss how these provisions have been interpreted by the courts. It briefly discusses the historical evolution of human rights provisions in Canada. However, the main focus of this course is the Canadian Charter of Rights and Freedoms. Throughout the course, key provisions including freedom of expression, legal right, equality rights, language rights, aboriginal rights and judicial review of public administration will be examined. Finally, the limitations of the Charter and ongoing debates on the desirability of its entrenchment in the Constitution Act of 1982 will be evaluated. Learning Objectives: Students are expected to acquire a foundational understanding of the process of judicial review in the context of the charter and human rights legislation. Furthermore, it is the main aim of this course to enhance the ability of students to gain an appreciation for complexity associated with the interplay of judicial review and politics. Finally, students are anticipated to develop analytical and research skills that are essential for pursuing advanced studies in the field of public administration. Required Textbook: Peter W. Hogg, Constitutional Law of Canada, Student Edition. Toronto: Carswell, Recommended Books: Roach, Kent, Robert J. Sharpe and Katherine E. Swinton. The Charter of Rights and Freedoms. Third Edition. Toronto: Irwin Law, Roach, Kent. The Supreme Court on Trial: Judicial Activism or Democratic Dialogue. Toronto: Irwin Law, Mendel, Michael. The Canadian Charter of Rights and the Legalization of Politics. Toronto: Thompson Educational Pub, Morton, F. L. and Rainer Knopff. The Charter Revolution and the Court Party. Peterborough: Broadview, Greene, Ian. The Charter of Rights. Toronto: Lorimer,

2 Web Resources: Supreme Court of Canada homepage: Reported Decisions of the Supreme Court 1983 to Present: Canadian Legal information Institute (a search engine for reported court cases in all Canadian jurisdictions). Course Requirements: Two Case Summaries (15% each) Case commentary (35%) Final Exam (35%-----last class) Lecture and Reading Schedule: 1- Introduction to the Course Outlining course objectives and explaining course requirements None 2- The Evolution of Human Rights in Canada and Pre-charter protection of civil Liberties. The Bill of Rights and Provincial Human Rights Required Readings; Hogg, Chapter 34, Hogg, Chapter 35 Ian Greene, Forward, Preface and Chapter I 3- The Charter of Rights and Freedoms. The Application and Interpretation of the Charter Required Reading: Hogg, Chapter 36, Hogg, Chapter 37 and Chapter R.v. Oakes, [1986] 4- Charter s Critics and Limitation of Rights Hogg, Chapter 38 and Chapter Freedom of Religion; Freedom of Expression; Hogg, Chapter (first case summary due) 2

3 6- Freedom of Assembly and Association Chapter 44 7-Fundamental Justice; Equality Rights; Language Hogg, Chapter 47, Chapter Language Rights Chapter 56 (second case summaries due) 9) Aboriginal Rights Hogg, Chapter 28 Murphy, Michael, Culture and Court: A New Direction in Canadian Jurisprudence on Aboriginal Rights? Canadian Journal of Political Science, 34 (2001), pp Revisiting Charter Critics and reflecting on the Future of the Charter Peter Hogg and Allison Russell. The Charter Dialogue between Courts and the Legislatures. Osgood Hall Law Journal. 35:1 (1997). Bazowski, Raymond, The Judicialization of the Canadian State, in James Bickerton and A.G. Gagnon, eds. Canadian Politics 4 th ed. Peterborough: Broadwive Press, Review Session (Case Study Due) 12-Final Exam Written Assignments: A- Case Summaries; Select one of the cases specified in reading materials. Summarize the case in 2-3 pages. B-Case Study or Case Comment The written assignment for this course consists of a case comment on a chosen topic drawn from a list provided below. Topics that are not specified in the list will not be accepted.the essay assignment is worth 35% of the final grade. The expected length of this written assignment is roughly 8-9 pages. No extensions are allowed except under exceptional circumstances. All late papers will lose 5% of their grade for each day that they are late. Case study is an extended commentary on a particular court case. The aim is to assess not only how a particular case was decided by the court, but also to analyze the implications of the ruling. The case comment is, therefore, an interpretative essay which focuses on specific court case but is not restricted to a simple exposition of its details. 3

4 Organizational Structure of a case comment: Even though there is no established set of rules on how to write a case comment, the following suggestions might be useful; 1-Introduce the case (specifying your rationale behind selecting this case). Identify the problem or problems and state your thesis statement. Your thesis statement must be sharp, concise and comprehensive. 2-Outline the main legal issues and questions. 3-Survey the development of law in this particular area and discuss the main issues raised by the case. 4-Interpret the judicial ruling on the case (you should look at courts rulings on cases similar to this case. Elaborate on consistency or inconsistency of judicial rulings on cases relevant to the area under investigation). 5-Conclusion; recapitulate main points and reflect on the implications of the case. In researching your paper, you should read not only court cases but academic analyses of these court cases. While there are no established rules on how many references are adequate to an exercise like this, it would be prudent to refer to at least 3 academic sources in addition to the cases you will cite. Helpful information on how to research legal literature can be found in Castle and Latch man, The Practical Guide to Canadian Legal Research. Court Cases: Religious Freedom; R.v.Big Drug Mart (1985) R.V.Edwards Books and Arts (1986) Multani v. Commission Scolaire Marguerite-Bourgeoys (2006) Syndicat Northcrest v. Amselem (2004) Freedom of Expression: R.V. Zundel (1992) R V. Keegstra (1990) R V. Butler (1992) R.v. Sharpe (2001) Little Sisters Book and Art Emporium v. Canada (2000) 4

5 Freedom of Association: Dummore.v.Ontario (2001) Delisle v.canada (1999) Lavigne v.ontario Public Service Employees Union (1991) Fundamental Justice: Morgentaler v.the queen (1989) Sing v. Minister of Employment and Immigration (1985) Chaoulli v. Quebec (2005) Gosselin v. Quebec (Attorney General, 2002). Reference re.b.c. Motor Vehicle Act (1985) Equality Rights; Andrews v.law Society of B.C. (1989) Vriend v. Alberta, [1989] Egan et al.v.the queen, (1995) Aboriginal Rights: R.v. Sparrow (1990) Delgamuukw v. British Columbia (1997) R.v. Marshall (1999) Mikisew Cree First Nation v.canada (Minister of Canadian Heritage, 2005) Accommodation for Disability: Students with disabilities who require adaptations or services must discuss their needs with the instructor. Accommodation for disability must be arranged in conjunction with the Office for Persons with Disability. Plagiarism: Plagiarism is generally considered to be the most serious academic misconduct that a student can commit. Whether intentionally or unintentionally, instances of plagiarism will have serious academic consequences. In order to avoid slipping into the realm of plagiarism, students are advised to familiarize themselves with York University s definition of academic dishonesty. 5