Law (Canadian Charter & Human Rights)

1.  In a recent interview, Justice Marie Deschamps, who just left the Supreme Court of Canada said that politicians wishing to avoid controversy pass “hot potato” political issues to judges.  She said “The clear message is: Let the judges do it. We are caught in these situations. We see those cases coming and we cannot say no.”  What cases have we reviewed this year appear to fall into this category.  What problems are created when politicians leave tough issues for the Court to resolve?  Is this a natural consequence of having a Charter of Rights?  Is this development an argument for or against having a document like the Charter?

2. The case of Khadr (and the cases we did not study of Kindler, Burns & Rafay,  Suresh and Charkaoui) suggest that the principles of fundamental justice that are part of the living tree of the Charter, reflect the prevailing socio-political opinions of the times – at least as understood by the judges of the Supreme Court.  If this is indeed the case, what are the arguments in favour of the Court reflecting these views and what are the arguments against such an approach? At the end of the day, which argument is the strongest?

3. Cunningham was a case where a program developed for a disadvantaged group was challenged by members of that group.  Sometimes these challenges are launched by members of groups who do not generally face disadvantage at all.  Should the Court make distinctions based on the situation of the group challenging the law?  If so what sorts of considerations should the courts employ?  If not, why not?

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4. Kent Roach writes about different types of dialogue that take place between the Supreme Court and the legislature.  One of the results of this dialogue can be that both parties essentially negotiate the scope of their authority in particular cases.  Discuss the way in which this dialogue helps reduce concerns about the untrammeled power of the Supreme Court.  If these theories are correct, what challenges does this process pose to disadvantaged groups who often rely on the courts?

5. In N.S. the Supreme Court of Canada issued three different decisions balancing the Charter protected rights of a fair trial against freedom of religion.  Does the fact that the Court was so divided on this issue mean that even the judges on the Supreme Court do not know how to resolve Charter claims?  Should these types of split decisions weaken public support for the Charter and its protections?

6. With Irwin Toy the Supreme Court of Canada moved away from a standard uniform test to be used in s. 1.  In that case the Court suggested that a relaxed standard of justification was necessary when the legislature was acting in favour of the vulnerable when mediating between the claims of competing groups.  This approach has now been used in criminal cases such as Keegstra and Butler, where, it might be argued, the state is acting as prosecutor seeking to imprison a person rather than as a mediator.  Why has the Court looked to Irwin Toy in some criminal cases?  Should this be seen as a positive or negative development?

7. A.C. v. Manitoba illustrates that a single government action may violate a number of Charter rights of an individual.  In such cases it is not enough to look at each potential breach individual, the Court has to consider the overall impact of the breaches on the person.  This requires that the Court develop what Dworkin would call the underlying concepts behind the Charter.  What do you think those underlying concepts are and why do you think this?

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