Week 1 - Role of Government and Human Rights

Week 1 - Role of Government

• Sources and exercises of state power and the constraints on that power are discussed
• Division of powers (Federal vs. Provincial) is examined
• Separation of powers (legislative, executive, judicial) is explored
• Rule of Law (all actors are equal under law, including government) is discussed
• D Clément's work (2009) on "Rights without the Sword" examines limitations of rights revolutions in Canada, and the gap between human rights rhetoric and enforcement.
• Human Rights are only valid if recognized and enforced by the state.

Need for Human Rights

• Common law precedents can uphold discrimination
• Human Rights law provides protection against common law
• Wickham v Hong Shing Chinese Restaurant (2018 HRTO)
  • Issue: Was Wickham subject to racial discrimination?
  • Decision: Yes, he was racially profiled
  • Rule: Burden on the applicant to show discrimination.
• Test for OHR code violation:
  • Applicant is a member of a protected group
  • Applicant experienced adverse treatment/disadvantage
  • Protected ground was a factor in the treatment.
• Criteria for establishing #3 (Peel Law Association v Pieters):
  • Prohibited grounds need only be a factor
  • No need to establish intent to discriminate
  • Prohibited grounds do not need to be the cause of defendant's conduct
  • No direct evidence required, circumstantial is enough
  • Racial stereotyping usually occurs from unconscious biases
• Remedial focus: Remedies aim to recognize harm to dignity and self-respect and ensure equal treatment and respect.
• Mikisew Cree First Nation v. Canada (Governor General in Council), 2018:
  • Duty to consult with Indigenous peoples applies to the law-making process (legislative branch).

Week 2 - Human Rights Law

• Human rights law and institutions were intended to change the common-law approach to discrimination.
• Human rights law and institutions prioritize education and prevention, with enforcement only when necessary.
• Fields of activity and grounds covered by human rights law have expanded over time through legislation and interpretation.
• Christie v York (1940 SCR)
  • Issue: Right to deny service based on race?
  • Decision: Tavern owner has right to deny service due to freedom of contract
  • Rule: Freedom of contract allows discrimination.
• J Walker, "Race" (1997):
  • Viola Desmond sat in white section of a theatre
  • Removed and charged with tax fraud (price difference between sections)
  • Example of how discrimination is supported by the state.
• Gilpin v Halifax Alehouse Ltd (2013 NSHRC)
  • Example of how discrimination is supported by the state.

Week 3 - The Constitution & Its Principles

• The constitution is both written and unwritten.
• Unwritten principles also underlie the constitution
• The constitutional principle of the rule of law requires all state action to be exercised in accordance with the law.
• The constitutional principle of "federalism" is a division of powers, but one doesn't require a specific division of powers.
• Other constitutional principles exist.
• Constitutional principles cannot be used to strike down legislation.
• Rule of Law: Government action must be sourced and bound in law.
• Horizontal Accountability: Accountability between government entities.
• Normative Order: Clear governing system of rules and shared expectations.
• Main aspects of Rule of Law (identified by Secession of Quebec 1998)
  • Law is supreme over government action.
  • Creation and maintenance of ordered laws is essential.
• Liston (2008): Rule of Law ensures governmental power stems from and is constrained by law, preventing arbitrariness.
• Three features of ROL: Prevention of arbitrariness

Week 4 - Legislative Branch

• The legislative branch debates and passes statutes.
• Parliament has three parts: the House of Commons, the Senate, and the Queen (Governor General).
• Each legislature has two parts: the legislature assembly and the Queen (Lieutenant Governor).
• Elections are not just about the outcome (Figueroa).
• Parliamentary privilege protects the ability of legislators to fulfill their functions (Vaid).
• Is parliamentary privilege legitimate? Is the reasoning in Figueroa convincing?

Week 5 - Executive Branch

• Executive power is held by the Queen and exercised on her behalf by the Governor General and Lieutenant Governors.
• Responsible government: The PM is the person who has the confidence (support) of the House.
• PM selects the cabinet.
• Hogg, (2005)
• Governor General
• Executive power held by queen, enacted by Governor General/Lieutenant Governor
• Governor General selects PM
• The only choices the Governor General can make without PM's advice
• PM selects other ministers & advises Governor General to appoint/remove them
• The Cabinet:
  • all ministers as a group = cabinet
  • Supreme executive authority
  • Decisions signed by Governor General
• Prime Minister:
  • Prime Minister (or premier) controls executive branch
  • Prime Minister controls legislative branch

Week 6 - Judicial Branch

• Judicial impartiality is about having an "open mind"
• The three core characteristics of judicial independence are security of tenure, financial security, and administrative independence.
• The two 'dimensions' of judicial independence are individual independence and institutional/collective independence (separation of powers)

Week 7 - Statutory Interpretation I

• The modern principle (Driedger) – the text is important but is not the only consideration (text/context).
• Rizzo & Rizzo Shoes Ltd. (Re) – statutory interpretation takes legislative intent into account (and avoids absurd results).
• Disagreement is possible over interpretation (Mossop).
• Understanding different types of interpretation (rules, principles).

Week 8 - Statutory Interpretation II

• The modern principle is applied in ways for courts
• Human rights legislation is 'quasi-constitutional'.
• The scope of grounds can be extended or narrowed through statutory interpretation