Class 3
The charter protects certain guarantee’s rights
We had freedom of expression before the charter of rights, but it wasn’t protected
constitutionally
The supremacy of parliament…parliament is no longer supreme in court
The division of power between parliament and the courts, has been criticized. Judges are
not accountable to anyone. They sit in judgment and they don’t have to explain themselves.
The judicial ruling is independent of political influence
Judicial council..sits in reviewment of judges conduct.
Unelected judges sitting in judgment
Charter doesn’t just guarantee certain freedoms that weren’t guaranteed before, but it also
removes some of the power that parliament and the legislators have had.
As a result, the dynamics, the relationships between the people, elected officials, and courts
have changed fundamentally
The charter was acted to protect individual rights, it reflects the American constitution and
the American bill of rights.
The American constitution is almost obsessive of individual rights
the Canadian charter of rights and freedom is a reaction to the British constitution, the
British constitution is more towards collective rights.
In England, the emphasis on legislation is more towards the notion of protection of society,
rather than the individual. So the American bill of rights and Canadian charter or rights is a
reaction against this, because we have said that the individual, is more important than the
collective except in random circumstances. The first array of charter cases, after 1982,
when legislation was first challenged, using the guaranteed rights in the charter, reflected
the idea of protection of the individual.
There has been a shift, and it is because the charter doesn’t say anything about individual
rights, so the court have used the charter not only to protect individual rights, but also
collective rights and overwritten the rights of the individual. Example: hate propaganda
case in 1990s against jame keepster alberta teacher, who was accused of spreading hate, he
taught in a high school saying the holocaust didn’t exist, the hate propaganda law was in
place, but the rights of the collective was more important than the individual rights.
The Canadian abortion law was struck down as unconstitutional because it interfered with
a woman’s right to control her own body, the collective rights, as argued as fetus’s and
societies as a whole, were secondary to a women’s right to control her reproductive
processes.
Ex: child pornography law struck down as invading and intrusion as the individuals right to
posses certain types of literature, in British Colombia. Then went to supreme court, Which
squashed this decision.
Before 1982, the Canadian constitution consisted of the “British North American Act” An
English document, in this document, there was no guaranteed civil liberties, freedom of
expression, speech, the press and so on were not guaranteed, weren’t even mentioned.
What we had was a federal system where a division of powers was emphasized. The
division of powers between the federal parliament and the provincial legislators. Section 91: Distribution of Legislative Power, powers of parliament. Initially, the powers to
regulate broadcasting, aviation, fell to the federal government. 2) regulation of trade and
commerce is a federal jurisdiction.
3) the raising of money by any mode or system of taxation -> now is provincial.
15. banking. Banking is a national federal jurisdiction. Uniform across the country. No
fragmentation like the united states.
27. the criminal law, except the constitution of courts and criminal jurisdiction, but
including the procedure in criminal matters. Only the federal government may create
criminal law. The provinces have been giving the opportunity to set up the courts with
jurisdiction, the criminal law itself is a federal jurisdiction. It is standard across the country
in provinces and territories. It is applicable everywhere. Uniformity in the law. In the U.S, it
is a state jurisdiction, 50 different criminal codes, vary from state to state. Ex: when
Kennedy was assonated in the states, there was no criminal law, so the federal law stepped
in.
Evolution of freedom of expression in Canadian Constitutional Law:
Powers of Provincial Legislatures:
Section 92 of British north American act and it is now Canadian act In 1867: In each
province the legislature may exclusively make laws in relation to matters within the classes
of subject next hereinafter enumerated….ex: education. Different educational systems in
the provinces, no uniformity. Each province has their own jurisdiction.
Section 13: property and civil rights in the province. Term civil rights doesn’t mean civil
liberties. Civil rights means rights in civil law. Civil law is the exclusive jurisdiction of the
provinces. Ex: different defamation acts in different provinces.
Section 16: Generally all matters of a merely local or private nature in the province. The
federal government has to deal with matters that deal with the whole country, banking,
criminal law, trade, etc. You do not want it fragmented, so it applies equally across the
country.
The provinces deal with problems that are intra provincial, deal with matters that are only
to that province, to that jurisdiction, property, civil law, etc. this division of power is what
governed constitutional cases prior to 1982. The absence of the protection of civil liberties
is part of the provincial or the national jurisdiction, there is nothing in section 91 or 92 that
discusses freedom of expression, or speech. So constitutionally It didn’t exist. So when
cases came before the court prior to 1982 that dealt with freedom of the press, censorship
of the media, they were decided simply on the basis of jurisdiction.
It was possible because parliament and the legislators were supreme, it was possible to
pass legislation and “get away with it”
That is no longer the case.
Canadian Bill of Rights (1960)
Civil liberties protected by statute
You cannot have a democratic form of government without free expression. The protection
was implied in directly. This concept that was articulated by a few supreme court judges. The creation of the implied bill of rights was an interesting legal rights, but was dismissed
by other judges, not interested in reading things in the constitution that isn’t there.
The status of freedom of expression, freedom of the press, was ambiguous. In 1960, the
Diefenbaker Government (diefen baker was a civil libertarian) passed the Canadian bill of
rights. For the first time, civil liberties, such as freedom of religion, press, expression were
protected by statute, but not in the constitution. This was a transiti
More
Less
