Quick Review

Beauregard - Judicial Independence

Manitoba Language Reference - rule of law

Edwards - Liberal interpretation of constitution

Each case tells us something about some aspect of constitutional principles:

*judges are independent (of government)

*judges must apply and enforce the law

*judges can interpret the constitution in a way that acknowledges growth and development of the document in response to changing contexts ("living tree" growth "within natural limits")

Focus on Courts: General Observations

Judges can declare laws unconstitutional

*declare that a particular law is inconsistent with the constitution

*laws inconsistent with the constitution are of no force or effect

Any Court can declare a law unconstitutional

* but recall that higher court decisions bind lower court decisions

*Supreme Court has the last word

Questions of Interpretation

*need to clarify conflicts

*need to determine the extent, limits of rights, powers distributed by the constitution

*interpretations (especially by the Supreme Court) guide, influence or bind courts

R.W.D.S Union Local 580 v. Dolphin Delivery

(Very) Complex facts

Upshot:

Dolphin seeks, and gets, an injunction to prevent secondary picketing on the ground that it constitutes "inducement to breach of contract": a common law tort.

Q1. Does this injunction interfere with the Union's right to freedom of expression?

Q2. Does the injunction violate the Charter guarantee of freedom of expression?

Q3. Does the Charter apply to the common law (or only to legislation passed by the federal and provincial governments)?

Answers:

A3. Yes. section 52 of Constitution Act, 1982 makes this clear: ALL law must conform to the constitution (no exceptions).

A2. If common law infringes on guarantee of freedom of expression, then it violates the Charter and hence is unconstitutional

BUT freedom of expression is not unlimited, in particular it cannot cause harm (more on this later)

A1. Union's freedom of expression is infringed only if they are using this freedom appropriately.

Further Question:

Does the Charter apply to private litigation?

Answer: No. Well, almost always no.

Charter is intended to apply to legislative and executive branches of government

But Courts are obviously bound by Charter (they have to apply and enforce it)

However courts are neutral adjudicators, not parts of the government (at least when they are not applying governmental statutes)

In private ligation, the court does not act as government, simply as adjudicator

Example: Consider the case of Blainey: girl denied right to play in boys' hockey league

She sued (private litigation) claiming rights violation and won. Why?

Ontario Human Rights code specifically allowed discrimination in athletic contexts, contrary to Charter equality provisions, s.15

Because the hockey league relied on provincial legislation to make its ruling against the girl, they violated her Charter rights

(the law that allowed discrimination, violated charter rights)

ALL legislation must conform to Charter

Litigation that does not rely on legislation is not bound by the Charter.

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