Study Questions: Chapter 6
1. What is the difference between rights and freedoms?
Brooks and Ménard say that rights are ntitlements that are so essential to human dignity that they receive special protection under the law. The defense of rights often requires government action. Freedoms refer to an individual’s liberty to do or believe certain things without government interference. The defense of freedoms requires governments to refrain from acting. (pp. 172–173)
2. In what ways have people with economic interests made attempts to fit their claims under non-economic provisions of the Charter?
Some examples include the following: Unions have argued, successfully, that section 2 (d) of the Charter, on freedom of association, protects the right to collective bargaining; business interests have successfully argued that section 8 of the Charter, which guarantees the right to be secure against unreasonable search and seizure, limits the search powers of governments investigating collusive business practices; the tobacco industry successfully argued that government legislation infringed its right to advertise, which was found to be protected by section 2 (b), freedom of expression; business successfully challenged the federal Lord’s Day Act, arguing that it infringed section 2 (a), freedom of religion. The Supreme Court was clear that the Charter does not guarantee economic and property rights. (pp. 181–182)
3. What are the possible unintended consequences of a group’s reliance on the concepts and interpretation of the legal system for achieving its objectives?
An unintended consequence is the idea that legal solutions to a problem are possible and desirable. This is not always the case. The law cannot solve all social and economic problems. To rely on the law is to neglect other, sometimes better, ways of addressing public issues. (pp. 173–174, 181–187)
4. Why was the Canadian Bill of Rights a disappointment for civil libertarians?
The Supreme Court justices were reluctant to use it in several cases. The justices determined that the Bill could not be used to strike down conflicting federal legislation and it did not take precedence over established rules of the common law. Since the Bill was only an ordinary act of Parliament, justices were reluctant to use it to strike down legislation. Also, the Bill only applied in the federal jurisdiction because it was not entrenched in the constitution. (pp. 174–175)
5. The Oakes test involves which two criteria?
The first criterion asks whether a government’s objective in limiting a right is sufficiently important to warrant such an encroachment. The second criterion is whether the extent of the limitation is proportional to the importance of the government’s objective. (pp. 177–178)
6. Why has the notwithstanding clause only been used on a handful of occasions?
It is not clear why it is rarely used. On the one hand, it may be that governments do not want to be seen depriving citizens of certain rights. On the other hand, it is arguable that invoking section 33 may result in political benefits, as happened when the Bourassa government invoked the section after the Supreme Court decision in Ford v. Attorney General of Quebec. It may be that the political elites are in agreement that the integrity of the Charter should be maintained. (pp. 178–181)
7. How has business benefited more than labour from the interpretation of the Charter by the courts?
Business has benefited more than labour from Charter interpretations for two reasons. First, business has been able to use political rights in the Charter to protect property rights. Secondly, inequality in society comes mostly from private economic relationships. When the courts say that the Charter recognizes only political and democratic rights but not economic ones, inequalities in society could become frozen since the dominant groups tend to win from this public/private distinction. (pp. 181, 187)
8. Why has the issue of when and how far judges should involve themselves in the determination of public policy become increasingly prominent?
Justices have rendered decisions on a variety of public issues. Critics from both the left and right argue that justices have been over-willing to use the Charter to strike down government policies. Brooks and Ménard make the additional point that the Charter has high popularity throughout the country. Thus, when justices use the Charter to render a decision, public ire is directed at the justices, not at the Charter. It should be remembered, too, that Charter is meant to protect people’s rights, even if public opinion is against the upholding of those rights. Justices are obliged to protect rights, as set out in the Charter, not to follow public opinion. (pp. 187–188)
9. What is the significance of the Supreme Court’s decision in R. v. Kapp in 2008?
The case involved a group of non-Aboriginal fishermen who were charged with salmon fishing during a 24-hour period reserved under federal law for three Aboriginal bands. The non-Aboriginal fishermen argued that the law violated their equality rights under the Charter. The Supreme Court agreed that the law made distinctions but upheld the constitutionality of the law because the Aboriginal fishermen were protected by section 15(2), the affirmative action clause. The decision reflects the Court’s view that section 15 guarantees substantive equality, not identical treatment. (pp. 186–187)
10. How is hate speech dealt with differently by the law and judicial interpretation in Canada and the United States?