Reputational interests are protected against defamatory and injurious statements by the common law o f defamation, which permits the targeted individual to recover damages for the injury to his reputation. At the same time, this body of common law sets limits to the constitutional right to free expression of the person who made the penalized communication. However, since s.32(l) of the Canadian Charter of Rights and Freedoms - according to the Supreme Court of Canada - restricts the Charter's application to the actions of legislative, executive and administrative branches of government, the Charter will be at best a bit player in defamation litigation governed by common law rule. This thesis deals with the tension between promoting free speech and protecting a person's reputation, i.e. with the questions whether the common law of defamation has achieved the correct balance between the protection of the individual's reputation and freedom of expression, or whether it needs to be modified in order to better accord with the Charter. A n important component of this thesis is its review of the decision of Hill v. Church of Scientology, where the Supreme Court of Canada addressed the question of whether defamation law needs to be reconsidered in light o f the Charter protection of free expression, and found the balance struck by the current law to be appropriate. A critical look at this decision, and more generally at the law of defamation itself, particularly its presumptions of falsity, malice and damages, will reveal the problems with the common law's resistance to making any major allowance for free expression. The author will argue that the Charter should apply to the common law in the same way as it applies to statutory law and that defamation law in particular would, in all probability, not survive the test under s.l of the Charter, concerning the justification of a limitation to a fundamental right. It will be concluded that the common law of defamation needs to be modified, i.e. that it must accord significantly more weight to freedom of expression in order to be consistent with the Charter. Insofar as the extent of such modification is concerned, the author will propose first of all to give the element of fault a more significant role in the common law of defamation. In addition, she will argue that the common law presumptions should be abolished. In sum, the author's reform proposal requires the plaintiff to prove not only that the words he complains of are defamatory, identify him and are published to a third person, but also that they are false, did indeed cause damage to his reputation and that the defendant acted with fault, i.e. intentionally or negligently, when publishing the defamatory falsehoods. / Law, Peter A. Allard School of / Graduate

The advent of the Charter of Rights and Freedoms signaled a new and vastly expanded role for the judiciary. By entrenching our civil liberties into the Canadian Constitution, the courts were given the express authority to override inconsistent statutes. Due to the inherent overlap between law and politics, election law is an area that is particularly sensitive to this recent enlargement of judicial power. Despite this, the courts have scrutinized many areas of election law and many federal and provincial statutes have been fundamentally altered. The purpose of this thesis is to determine whether the courts have developed a uniform theory of judicial review where election law is concerned via four case studies: electoral boundary redistribution, prisoner voting rights, the publication of opinion polls during campaigns and third party spending limits. Through an extensive review of the relevant case law and literature, I conclude that the courts have failed to develop a coherent and consistent theory judicial review regarding the application of the Charter to election law. My analysis reveals that the inconsistencies stem largely from three main sources: first is the failure of the courts to adopt a single vision of what constitutes a fair electoral system; second is that the case studies are dealing with two different sections of the Charter (ss. 2(b) and 3); and third is the Oakes test which has expanded judicial discretion along with the potential for disparity. If consistency is ever going to be achieved, the courts need to adopt a single vision of democracy in Canada. Until then, we are left to guess when our political rights may be justifiably restricted under the Charter. / Arts, Faculty of / Political Science, Department of / Graduate

This thesis is concerned with those 'social' rights that relate to the provision of the basic necessities of life; that is the right to an adequate standard of living (including food, clothing and shelter), the right to health and the right to education. The International Covenant on Economic, Social and Cultural rights (ICESCR) recognises obligations pertaining to the progressive realisation of these rights, whilst leaving the method of implementation within domestic discretion. The Canadian Charter of Rights and Freedoms only accords domestic constitutional protection to civil rights, leaving the implementation of these social rights within government discretion. This study will examine what has, in the Canadian experience, proven to be the practical consequences of adopting such a policy of 'selective constitutionalisation,' that puts social rights by definition outside the ambit of legal enforcement. Firstly, it will examine the court's approach to cases that have, in the absence of constitutionalised social rights, attempted to indirectly invoke social rights by encouraging a positive social interpretation of the right to equality and the right to life, liberty and security of the person, and will illustrate that the courts have failed to interpret these rights so as to indirectly protect social rights. Secondly, it will consider the relationship between legal, political and social discourse, illustrating that, in light of the non- constitutionalised status of social rights, the values underlying these rights have been marginalised in political and social discourse, facilitating reforms that have restructured and eroded the welfare state, reducing the realisation of social rights within Canada. Thirdly, it will consider the practicability of adopting the alternative approach of according equal constitutional protection and justiciable status to social rights, through an examination of the theoretical literature and the approach taken to social rights under the Final Constitution of the Republic of South Africa 1996. It will illustrate that the philosophical arguments that have been utilised to support the nonconstitutionalised status of social rights are no longer sustainable and that the constitutional experience of South Africa provides evidence that a practical alternative to the position adopted in Canada exists. / Law, Peter A. Allard School of / Graduate

No description available.

No description available.

The introduction of the Charter of Rights and Freedoms has affected many elements of the constitutional system in Canada. This dissertation explores the Charter's relationship with liberal constitutionalism and Canadian federalism, and considers whether judicial review on Charter grounds has seen a progression, or a regression, from parliamentary to constitutional to judicial supremacy. Further, this dissertation considers whether Charter review has reduced provincial autonomy by imposing national values in provincial areas of jurisdiction when Charter review nullifies provincial statutes. Through a complex process referred to as the rebalancing of liberal constitutionalism, this study argues that a changed Charter jurisprudence by the Supreme Court of Canada and a changed policy process within the administrative state at the federal level have reduced the negative implications of Charter review for liberal constitutionalism and Canadian federalism. To advance this argument, the concept of Charter activism is introduced to demonstrate that the rebalancing of liberal constitutionalism is the product of the shifting equilibrium within two distinct elements that comprise Charter activism---judicial activism and bureaucratic activism. This study pursues three themes to demonstrate that the decline of judicial activism and the emergence of bureaucratic activism now converge at a point within Charter politics that facilitate the rebalancing of liberal constitutionalism and ensure that Charter review advances constitutional and not judicial supremacy. The first theme investigates the Supreme Court of Canada as a policy actor during Charter review, and analyzes Charter decisions between 1982 and 1997. The second theme considers the impact of Charter review on Canadian federalism and whether the Charter has centralized Canadian federalism and reduced provincial autonomy. The final theme investigates bureaucratic activism and the changes within the policy process at the fe

This work considers the legal impediments to farming in an urban environment with a particular focus on the municipal bylaws that prohibit the keeping of hens in Saskatoon. The jurisdictional competency of Saskatoon to prohibit the keeping of urban hens is challenged under both municipal law and constitutional law, and more broadly, under the general premise that liberty interests should often prevail where a bylaw is arbitrary, misinformed, and restricts the pursuit of truth and human flourishing. Saskatoon’s urban hen prohibition is argued to be premised more on a form of moral reasoning that unnecessarily distinguishes between rural and urban environments, and less, if at all, on empirical evidence. Urban agriculture is often undertaken to address the environmental and social shortfalls of the global food system, such as the system’s connection with climate change, animal welfare issues, and challenges associated with the distribution of food. Moreover, urban agriculture is a means of protecting the rights of producers and consumers, as articulated by the food sovereignty movement. In this work, a claimant’s desire to advance food rights (including food sovereignty) through the keeping of urban hens is argued to engage the guarantee to freedom of expression and freedom of conscience under Canada’s Charter of Rights and Freedoms. This work explores the possibility of protecting the manifestation of social and environmental action through the guarantee to freedom of conscience. This work develops a cursory test for determining where a claimant’s guarantee to freedom of conscience is violated, drawing on the well established protection of freedom of expression and freedom of religion.

No description available.

The courts in Canada have often been cast, by both courts and legal scholars, as 'umpires' or 'arbiters' of the federal-provincial division of powers - umpires or arbiters that have the exclusive, or at least decisive, authority to clarify and enforce, and resolve disputes about, 'who does what' in the federal system. However, the image conveyed by these metaphors underestimates the role that the federal and provincial political branches play in the federal system, by working out their own solutions, in the intergovernmental arena, both directly and indirectly, where questions and disputes arise about how jurisdiction is and should be allocated. The image conveyed by the umpire or arbiter metaphors also sits uncomfortably with the facilitative role that the Supreme Court of Canada has carved out for itself in its recent division of powers decisions, a role that casts the courts as facilitators of these instances of intergovernmental dialogue. This doctoral dissertation challenges, and moves beyond, the umpire and arbiter metaphors. It examines the political safeguards available to the provinces in Canada to prevent, or limit, perceived federal encroachments on provincial jurisdiction, in the process highlighting the role that the political branches play in Canada in working out their own allocations of jurisdiction, outside of the courts. It describes, and critically evaluates, the facilitative role carved out by the Court in its recent division of powers decisions, identifying various reasons to be skeptical of a facilitative role that casts the courts as facilitators of intergovernmental dialogue. Finally, and with an eye to future research, it briefly outlines an alternative facilitative role that focuses on facilitating deliberation about the division of powers implications of particular initiatives, arguing that it would be premature to dismiss facilitative approaches to judicial review altogether.

No description available.