Fundamental Freedoms and Justification
In this seminar, we will hear presentations and discuss the following propositions:
We will concentrate on the following cases (feel free to refer to others, especially those covered in your basic Constitutional Law course):
(1) "Just about anything qualifies as expression, even the worst possible child pornography and advertisements aimed at profit-making, and just about any restraint on expression is ruled as a s. 2(b) breach, sending the matter to s. 1. This approach trivializes the Charter and is not consistent with cases under s. 2(a) (religion) and s. 2(d) association. Matters should not be so readily sent to s. 1, where the onus lies on government to justify its positions."
(2) Government should not be obligated to take positive measures to facilitate the exercise of fundamental freedoms.
(3) "The test for justification under s. 1 can be strict (more difficult for government to meet) or deferential (easier for government to meet). The Supreme Court of Canada has identified certain types or categories of cases that fall into the “deferential” category. On the whole, the categories do not make sense. It is just result-oriented, political reasoning."
Irwin Toy Ltd. v. A.G. Quebec, [1989] 1 S.C.R. 927 (relevant to s. 2(b) discussion).
R. v. Sharpe, [2001] 1 S.C.R. 45 (relevant to s. 2(b) discussion).Baier v. Alberta, [2007] 2 S.C.R. 673 (positive government action under s. 2(b); the general test for positive government action).
Greater Vancouver Transportation Authority v. Canadian Federation of Students - British Columbia Component, 2009 SCC 31 (positive government action under s. 2(b)).
Fraser v. Ontario (Attorney General) (2008), 92 O.R. (3d) 481 (Ont. C.A.) (positive government action under s. 2(d).
Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 (relevant to s. 1 discussion).Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (s. 2(a) case; also relevant to s. 1 discussion).