Tag: Constitutional

Rex v John Wilkes, Esq; 7 Feb 1770

References: [1770] EngR 34, (1770) 4 Burr 2527, (1770) 98 ER 327 (B)
Links: Commonlii
Ratio An information for a misdemearior may be amended the day before trial by a single Judge at chambers on hearing both sides aiid without the consent of the defendant.
On setting aside John Wilkes’ outlawry for publishing The North Briton, Lord Mansfield said that the law must be applied even if the heavens fell
This case cites:

  • See Also – John Wilkes, Esq -v- The King HL (Commonlii, [1768] EngR 2, (1768) Wilm 322, (1768) 97 ER 123)
    Mr Wilkes had been accused of making a seditious libel against the King. He had peaded not guilty, but then absconded after his conviction, but before his sentence. . .
  • See Also – John Wilkes -v- The King PC (Commonlii, [1769] EngR 25, (1769) 4 Bro PC 360, (1769) 2 ER 244)
    An information for an offence, is a surmise or suggestion upon record, on behalf of the King, to a Court of Criminal Jurisdiction, and is to all intents and purposes the King’s suit; and may be filed by tbe Solicitor General, during a vacancy of the . .

(This list may be incomplete)
This case is cited by:

  • Cited – PJS -v- News Group Newspapers Ltd SC (Bailii, [2016] UKSC 26, [2016] WLR(D) 272, WLRD, Bailii Summary)
    The appellants, had applied for restrictions on the publication of stories about extra marital affairs.The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the internet . .

(This list may be incomplete)

Last Update: 29-May-16
Ref: 374207

Reference re : Amendment to the Canadian Constitution; 9 Feb 1982

References: [1982] 2 SCR 791, 1982 CanLII 218 (SCC)
Links: Canlii
Supreme Court of Canada – APPLICATION for leave to appeal from a decision of the Court of Appeal of Quebec dismissing applicant’s application to intervene relating to a reference ordered by the Government of Quebec. Application dismisse
Last Update: 20-Nov-15 Ref: 554758

Dimes v Lord Cottenham; 2 May 1850

References: [1850] EngR 499 (A), (1850) 5 Exch 311
Links: Commonlii
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court.
This case cites:

  • See Also – Dimes -v- The Company of Proprietors of The Grand Junction Canal CExC ([1846] EngR 55, Commonlii, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, Commonlii, (1846) 15 Sim 402, (1846) 60 ER 675)
    By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
  • See Also – The Grand Junction Canal Company -v- Dimes ([1849] EngR 576, Commonlii, (1849) 12 Beav 63, (1849) 50 ER 984)
    In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
  • See Also – The Grand Junction Canal Company -v- Dimes CA ([1850] EngR 242, Commonlii, (1850) 2 Mac & G 285, (1850) 42 ER 110)
    The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .

This case is cited by:

  • See Also – In Re Dimes ([1850] EngR 769, Commonlii, (1850) 3 Mac & G 4, (1850) 42 ER 162)
    The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
    Held: Such an endorsement did not mean that the . .
  • See Also – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
  • See Also – Dimes -v- The Proprietors Of The Grand Junction Canal and Others ([1852] EngR 793, Commonlii, (1852) 3 HLC 794, (1852) 10 ER 315)
    The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .

Skelton v Collins; 7 Mar 1966

References: (1966) 115 CLR 94, [1966] HCA 14
Links: Austlii
Coram: Kitto, Taylor, Menzies, Windeyer and Owen JJ
(High Court of Australia) Damages – Personal Injuries – Loss of earning capacity – Loss of expectation of life – Loss of amenities during reduced life span – Pain and suffering – Plaintiff rendered permanently unconscious by injuries – Basis of assessment.
Precedent – Decisions of House of Lords – Applicability – High Court – Other Australian courts.
This case is cited by:

  • Followed – Pickett -v- British Rail Engineering HL ([1980] AC 136, Bailii, [1978] UKHL 4)
    The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Tynes v Barr; 28 Mar 1994

References: (1994) 45 WIR 7, [1994] ICHRL 5
Links: Worldlii
(Supreme Court of the Bahamas) The plaintiff had been wrongfully arrested and humiliated publicly at an airport. He claimed exemplary damages. In assessing the exemplary damages in a court should take account of the injury the plaintiff has endured to his dignity and pride, mental suffering and loss of reputation: ‘Exemplary damages should be awarded in view of the arrogant, abusive and outrageous disregard shown by the police for the law, in particular, their delay in producing documents; the manner in which the defence was conducted; and the fact that liability was not conceded until the sixth and ninth days of the trial and even then with no appropriate apology being offered to the plaintiff. The police should be made aware of the need to observe the requirements as to when they may arrest and detain a person without a warrant and the way in which a person so detained must be humanely treated.’
This case is cited by:

  • Cited – Takitota -v- The Attorney General and Others PC (Bailii, [2009] UKPC 11, 26 BHRC 578)
    Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a . .

Breavington v Godleman; 18 Aug 1988

References: [1988] HCA 40, (1988) 169 CLR 41, (1988) 80 ALR 362, (1988) 62 ALJR 447, (1988) 7 MVR 289
Links: Austlii
Coram: Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey, Gaudron JJ
Austlii (High Court of Australia) – Private International Law – Tort – Negligence – Act committed in Territory – Personal injury – Territory statute imposing limit on amount of damages – Action in State court – No limit on amount of damages under State law – Choice of law – Whether law of place of tortious act or of forum – The Constitution (63 and 64 Vict. c. 12), ss. 118, 122 – Motor Accidents (Compensation) Act 1979 (N.T.), ss. 4,5 – State and Territorial Laws and Records Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction – Conflict of laws – Full faith and credit – Whether State court required to give full faith and credit to Territory statute – Whether law of Territory a law of the Commonwealth – Inconsistency – The Constitution (63 and 64 Vict. c. 12), ss. 109, 118 – State and Territorial Laws and Recognition Act 1901 (Cth), s. 18.
Federal Jurisdiction – Action in State court against Commonwealth – Submission to jurisdiction – Whether federal jurisdiction – Whether State choice of law rules apply – The Constitution (63 and 64 Vict. c. 12), ss. 75(iii), 78 – Judiciary Act 1903 (Cth), ss. 39(2), 56, 64, 79.
This case is cited by:

  • Cited – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
    The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
  • Cited – Roerig -v- Valiant Trawlers Ltd CA ([2002] All ER (D) 234, Bailii, [2002] EWCA Civ 21, [2002] 1 WLR 2304)
    The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .

Regina v Grant; 17 Jul 2009

References: 2009 SCC 32, [2009] 2 SCR 353, 309 DLR (4th) 1, 245 CCC (3d) 1, 66 CR (6th) 1, 253 OAC 124
Links: Canlii
Coram: McLachlin CJ and Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ
Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Arbitrary detention – Right to counsel – Encounter between accused and police going from general neighbourhood policing to situation where police effectively took control over accused and attempted to elicit incriminating information – Whether police conduct would cause a reasonable person in accused’s position to conclude that he or she was not free to go and had to comply with police demand – Whether accused arbitrarily detained – Whether accused’s right to counsel infringed – Meaning of ‘detention’ in ss. 9 and 10 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Enforcement – Exclusion of evidence – Firearm discovered as result of accused’s statements taken in breach of his right against arbitrary detention and right to counsel – Firearm admitted into evidence at trial and accused convicted of five firearms offences – Whether admission of firearm bringing administration of justice into disrepute – Revised framework for determining whether evidence obtained in breach of constitutional rights must be excluded – Canadian Charter of Rights and Freedoms, s. 24(2).
Criminal law – Firearms – Possession of firearm for purposes of weapons trafficking – Whether simple movement of firearm from one place to another without changing hands amounts to weapons trafficking – Meaning of ‘transfer’ of weapon for purposes of ss. 84, 99 and 100 of Criminal Code, R.S.C. 1985, c. C-46.
This case is cited by:

  • Cited – Ambrose -v- Harris, Procurator Fiscal, Oban, etc SC (Bailii, [2011] UKSC 43, Bailii Summary, SC Summary, SC, UKSC 2011/0101, 2011 SLT 1005, [2011] 1 WLR 2435)
    (Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .

P V Narashimo Rao v State; 17 Apr 1998

References: [1998] INSC 229
Links: LII of India
(Supreme Court of India) Members of Parliament were protected by privilege from prosecution for bribery in respect of voting in parliamentary proceedings.
This case is cited by:

  • Cited – Chaytor and Others, Regina -v- SC (Bailii, [2010] UKSC 52, Bailli Summary, [2010] WLR (D) 311, WLRD, UKSC 2010/0195, SC Summary, SC, [2011] 1 Cr App R 22, [2010] 3 WLR 1707, [2011] 1 All ER 805)
    The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .

University of Wollongong v Merwally; 22 Nov 1984

References: (1984) 158 CLR 447
Links: Austlii
Coram: Deane J
(High Court of Australia) Deane J said: ‘A parliament may legislate that, for the purposes of the law which it controls, past facts or past laws are to be deemed and treated as having been different to what they were. It cannot however objectively expunge the past or alter the facts of history.’
This case is cited by:

  • Cited – Kleinwort Benson Ltd -v- Lincoln City Council etc HL (Gazette 18-Nov-98, Gazette 10-Feb-99, Times 30-Oct-98, House of Lords, Bailii, [1998] UKHL 38, [1999] 2 AC 349, [1998] 4 All ER 513, [1998] 3 WLR 1095, [1998] Lloyds Rep Bank 387)
    Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap agreements were . .
  • Cited – Hazell -v- Hammersmith and Fulham London Borough Council HL ([1992] 2 AC 1, [1991] 2 WLR 372, [1991] 1 All ER 545)
    The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .

Novello v Toogood; 29 Apr 1823

References: (1823) 1 B and C 554, [1823] EngR 492, (1823) 1 B & C 554, (1823) 107 ER 204
Links: Commonlii
The defendant a British born subject was a music master and teacher of Italian, but was also employed in part as a chorister in the chapel of a foreign ambassador. He rented a large house, subletting parts. He resisted distraint on the premises for non-payment of poor rates.
Held: The appointment as a servant of the foreign ambassador was not sufficient to to protect him from such distraint, at least so far goods were not associated with hs appointment.
This case is cited by:

  • Cited – Regina -v- Jones (Margaret), Regina -v- Milling and others HL (Bailii, [2006] UKHL 16, Times 30-Mar-06, [2006] 2 WLR 772, [2006] 2 CAR 9, [2007] 1 AC 136)
    Each defendant sought to raise by way of defence of their various criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were accordingly . .
  • Cited – Aziz -v- Aziz and others Rev 1 CA (Bailii, [2007] EWCA Civ 712, Times 17-Jul-07)
    The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .

Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component; 10 Jul 2009

References: [2009] 2 SCR 295, 309 DLR (4th) 277, 2009 SCC 31, [2009] 8 WWR 385, 272 BCAC 29, 389 NR 98, 93 BCLR (4th) 1, EYB 2009-161351, JE 2009-1320, [2009] SCJ No 31 (QL), 179 ACWS (3d) 98, 192 CRR (2d) 336
Links: Canlii
Coram: McLachlin CJ and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application of Charter – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Actions brought alleging that transit authorities’ policies violated freedom of expression – Whether entities which operate public transit systems ‘government’ within meaning of s. 32 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Freedom of expression – Advertisements on buses – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Whether advertising policies infringing freedom of expression – If so, whether infringement can be justified – Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Constitutional law – Charter of Rights – Reasonable limits prescribed by law – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies infringing freedom of expression -Whether policies are ‘law’ within meaning of s. 1 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Remedy – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies unjustifiably infringing freedom of expression – Declaration that policies are of ‘no force or effect’ sought – Whether declaration ought to be based on s. 52 of Constitution Act, 1982 or s. 24(1) of Canadian Charter of Rights and Freedoms – Whether policies are ‘law’ within meaning of s. 52 of Constitution Act, 1982.

Chamberlains v Lai; 11 Sep 2006

References: [2006] NZSC 70
Links: Nzlii
Coram: Elias CJ
NZLII Supreme Court of New Zealand) [1] Access to the courts for vindication of legal right is part of the rule of law. Immunity from legal suit where there is otherwise a cause of action is exceptional. Immunity may be given by statute, as in New Zealand in respect of personal injuries where other, exclusive, redress is provided. An immunity may attach to status, such as of diplomats or heads of state. All cases of immunity require justification in some public policy sufficient to outweigh the public policy in vindication of legal right.
[2] Public policy is not static. So, for example, the immunities of the Crown have been progressively rolled back in response to changing attitudes as to where the public interest lies. And the wide immunity at common law for states and heads of state has been restricted and modified by modern legislation and judicial decisions, often under the influence of developing international law.
[3] The present appeal raises the question whether public policy justifies retention of a limited common law immunity for legal practitioners from claims by their clients for professional negligence. In principle, all who undertake to give skilled advice are under a duty to use reasonable care and skill. An immunity which shields legal practitioners from liability for breach of that duty is anomalous. No other professional group is immune from liability for breach of duties of care they owe to those they advise, treat or represent.
[4] The existing immunity, which attaches to court representation and work ‘intimately connected’ with it, was not clearly established as a matter of New Zealand law until the 1973 Court of Appeal decision in Rees v Sinclair. Rees v Sinclair applied the 1967 decision of the House of Lords in Rondel v Worsley. The immunity recognised in Rondel v Worsley was also adopted in the same form in Australia. No such sweeping immunity is known in Canada or in the United States federal jurisdiction.
[5] Rondel v Worsley has been controversial. Eleven years after it was decided, Lord Diplock in Saif Ali v Sydney Mitchell & Co expressed regret that the argument in that case had not extended to:
. . a more radical submission that the immunity of the advocate, whether barrister or solicitor, for liability for negligence even for what he says or does in court ought no longer to be upheld.
This case is cited by:

  • Cited – Jones -v- Kaney SC (135 Con LR 1, [2011] 2 WLR 823, [2011] BLR 283, [2011] 2 AC 398, [2011] 14 EG 95, [2011] 2 All ER 671, Bailii, [2011] UKSC 13, Bailii Summary, SC Summary, SC, UKSC 2010/0034)
    An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
    Held: The . .

Tse Wai Chun Paul v Albert Cheng; 13 Nov 2000

References: [2001] EMLR 777, [2000] 3 HKLRD 418, [2000] HKCFA 35
Links: hklii
Coram: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Ribeiro PJ, Sir Denys Roberts NPJ and Lord Nicholls of Birkenhead NPJ
(Court of Final Appeal of Hong Kong) For the purposes of the defence to defamation of fair comment: ‘The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded’ and
‘The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting upon matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree’.
The defence of honest comment is available even if the comment was made with intent to injure, as where a politician seeks to damage his political opponent.
The comment must be on a matter of public interest, recognisable as comment, be based on true or privileged facts, indicate the facts on which the comment is based, and ‘must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.’
This case cites:

  • Cited – Myerson -v- Smith’s Weekly ((1923) 24 SR (NSW) 20)
    (New South Wales) The court considered the distinction between fact and comment. Ferguson J said: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his . .
  • Cited – Gardiner -v- Fairfax ((1942) 42 SR (NSW) 171)
    Complaint was made that the plaintiff had been libelled in the defendant’s book review.
    Held: A publication is defamatory in nature if it ‘is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the . .
  • Cited – London Artists Ltd -v- Littler CA ([1969] 2 QB 375, [1968] 1 WLR 607, Bailii, [1968] EWCA Civ 3, [1969] 2 All ER 193)
    The defence of fair comment on matters of public interest is not to be defined too closely. Lord Denning MR said: ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going . .
  • Cited – Kemsley -v- Foot HL ([1952] AC 345)
    The plaintiff alleged that the headline to an article written by the defendant which criticised the behaviour of the Beaverbrook Press, and which read ‘Lower than Hemsley’ was defamatory. The defendant pleaded fair comment.
    Held: The article . .

This case is cited by:

  • Cited – Keays -v- Guardian Newspapers Limited, Alton, Sarler QBD (Bailii, [2003] EWHC 1565 (QB))
    The claimant asserted defamation by the defendant. The parties sought a decision on whether the article at issue was a comment piece, in which case the defendant could plead fair comment, or one asserting fact, in which case that defence would not . .
  • Cited – Panday -v- Gordon PC (Bailii, [2005] UKPC 36, PC)
    (Trinidad and Tobago) A senior politician had accused an opponent of pseudo-racism. The defendant asserted that he had a defence under the constitution, allowing freedom of political speech.
    Held: The appeal failed. The statements were . .
  • Cited – Lowe -v- Associated Newspapers Ltd QBD ([2006] 3 All ER 357, Bailii, [2006] EWHC 320 (QB), Times 29-Mar-06, [2007] QB 580)
    The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
    Held: To claim facts in aid of a defence of fair . .
  • Cited – Associated Newspapers Ltd -v- Burstein CA (Bailii, [2007] EWCA Civ 600, [2007] EMLR 21, [2007] EMLR 571, [2007] 4 All ER 319, [2001] 1 WLR 579)
    The newspaper appealed an award of damages for defamation after its theatre critic’s review of an opera written by the claimant. The author said the article made him appear to sympathise with terrorism.
    Held: The appeal succeeded. Keene LJ . .
  • Cited – Blackwell -v- News Group Newspapers Ltd and others QBD (Bailii, [2007] EWHC 3098 (QB))
    The claimant sought damages saying that a newspaper article published by the defendant was defamatory. He was the manager of Leeds United Football club, and was said to have lost the dressing room.
    Held: The claimant was entitled to summary . .
  • Cited – CC -v- AB QBD (Bailii, [2006] EWHC 3083 (QB), [2007] EMLR 11, [2007] Fam Law 591, [2007] 2 FLR 301)
    The claimant sought an order to prevent the defendant and others from making it known that the claimant had had an adulterous relationship with the defendant’s wife. . .
  • Cited – Thornton -v- Telegraph Media Group Ltd QBD (Bailii, [2009] EWHC 2863 (QB))
    The claimant sought damages for an article in the defendant’s newspaper, a review of her book which said she had falsely claimed to have interviewed artists including the review author and that the claimant allowed interviewees control over what was . .
  • Limited – Spiller and Another -v- Joseph and Others SC (Bailii, [2010] UKSC 53, UKSC 2009/0210, SC Summary, SC, [2010] WLR (D) 310, WLRD, [2010] 3 WLR 1791, Bailii Summary, [2011] 1 All ER 947, [2011] ICR 1, [2011] EMLR 11)
    The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
    Held: The defendants’ appeal succeeded, and the fair . .

RJR-MacDonald Inc v Canada (Attorney General); 21 Sep 1995

References: [1995] 3 SCR 199, 1995 CanLII 64 (SCC), 127 DLR (4th) 1, 100 CCC (3d) 449, 62 CPR (3d) 417, 31 CRR (2d) 189
Links: Canlii
Coram: Lamer CJ and La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ
Supreme Court of Canada – Constitutional law — Division of powers — Charter of Rights — Freedom of expression — Commercial advertising — Cigarette advertising banned — Whether or not legislation validly enacted under criminal law power or under peace, order and good government clause — If so, whether or not Act’s provisions infringing s. 2(b) Charter right to freedom of expression — If so, whether or not infringements justifiable under s. 1 — Canadian Charter of Rights and Freedoms, ss. 1, 2(b) –Constitution Act, 1867, Preamble, s. 91(27) — Tobacco Products Control Act, S.C. 1988, c. 20, ss. 4, 5, 6, 8, 9.
This case is cited by:

  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

Lavigne v Ontario Public Service Employees Union; 27 Jun 1991

References: [1991] 2 SCR 211, 1991 CanLII 68 (SCC)
Links: Canlii
Coram: Wilson, La Forest, L’Heureux-Dube, Sopinka, Gonthier, Cory and McLachlin JJ
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee objecting to expenditure of union dues on causes unrelated to collective bargaining – Whether Charter applies – Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, s. 53 – Canadian Charter of Rights and Freedoms, s. 32(1).
Constitutional law – Charter of Rights – Freedom of association – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee objecting to expenditure of union dues on causes unrelated to collective bargaining – Whether s. 2(d) of Canadian Charter of Rights and Freedoms infringed – If so, whether infringement justifiable under s. 1 of Charter – Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, ss. 51, 52, 53.
Constitutional law – Charter of Rights – Freedom of expression – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee objecting to expenditure of union dues on causes unrelated to collective bargaining – Whether s. 2(b) of Canadian Charter of Rights and Freedoms infringed – If so, whether infringement justifiable under s. 1 of Charter – Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, ss. 51, 52, 53.
Wilson J observed: ‘The Oakes inquiry into ‘rational connection’ between objectives and means to attain them requires nothing more than showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt.’
This case is cited by:

  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

Alberta v Hutterian Brethren of Wilson Colony; 24 Jul 2009

References: 9 Alta LR (5th) 1, 310 DLR (4th) 193, 2009 SCC 37 (CanLII)
Links: Canlii
Coram: McLachlin CJ and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein J
Canlii Constitutional law – Charter of Rights – Freedom of religion – New regulation requiring photo for all Alberta driver’s licences – Members of Hutterian Brethren sincerely believing that Second Commandment prohibits them from having their photograph willingly taken – Whether regulation infringed freedom of religion – If so, whether infringement justified – Canadian Charter of Rights and Freedoms, ss. 1, 2(a) – Operator Licensing and Vehicle Control Regulation, Alta. Reg. 320/2002, s. 14(1)(b) (am. Alta. Reg. 137/2003, s. 3).
Constitutional law – Charter of Rights – Right to equality – Discrimination based on religion – New regulation requiring photo for all Alberta driver’s licences – Members of Hutterian Brethren sincerely believing that Second Commandment prohibits them from having their photograph willingly taken – Whether regulation infringed right to equality – Canadian Charter of Rights and Freedoms, s. 15 – Operator Licensing and Vehicle Control Regulation, Alta. Reg. 320/2002, s. 14(1)(b) (am. Alta. Reg. 137/2003, s. 3).
This case is cited by:

  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .

President of the Republic of South Africa v South African Rugby Football Union; 4 Jun 1999

References: [1999] ZACC 9, [1999] 4 SA 147
Links: SAFLii
Constitutional Court of South Africa – The court considered an allegation of bias in the judge, it being said that they should have recused themselves: ‘The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training ad experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.’
This case is cited by:

  • Cited – O’Neill -v- Her Majesty’s Advocate No 2 SC (Bailii, [2013] UKSC 36, [2013] 2 Cr App R 34, [2013] HRLR 25, [2013] 1 WLR 1992, 2013 SCL 678, 2013 SLT 888, 2013 GWD 21-410, [2013] WLR(D) 231, 2013 SCCR 401, WLRD, Bailii Summary, UKSC 2012/0149, SC Summary, SC)
    The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .

Sauve v Canada (Chief Electoral Officer); 31 Oct 2002

References: 218 DLR (4th) 577, 168 CCC (3d) 449, 5 CR (6th) 203, 294 NR 1, JE 2002-1974, [2002] SCJ No 66 (QL), 117 ACWS (3d) 553, [2002] ACS no 66, 55 WCB (2d) 21, 98 CRR (2d) 1, [2002] 3 SCR 519, 2002 SCC 68 (CanLII)
Links: Canlii
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Right to vote – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Crown conceding that provision infringes right to vote – Whether infringement justified – Canadian Charter of Rights and Freedoms, ss. 1, 3 – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Constitutional law – Charter of Rights – Equality rights – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision infringes equality rights – Canadian Charter of Rights and Freedoms, s. 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Elections – Disqualifications of electors – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision constitutional – Canadian Charter of Rights and Freedoms, ss. 1, 3, 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
This case is cited by:

  • Cited – Chester, Regina (on The Application of) -v- Secretary of State for Justice SC (Bailii, [2013] UKSC 63, [2014] 1 AC 271, [2014] HRLR 3, [2013] 3 WLR 1076, [2014] 1 All ER 683, [2013] WLR(D) 392, [2014] 1 CMLR 45, 2014 SC (UKSC) 25, 2014 SLT 143, 2013 GWD 34-676, WLRD, Bailii Summary, UKSC 2012/0151, SC Summary, SC)
    The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
    Held: The . .

Clayton v Heffron; 17 Oct 1960

References: (1960) 105 CLR 214
Links: Austilii
Coram: Dixon CJ, McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ
(High Court of Australia) An Act was proposed to be introduced by the legislature to amend the constitution of New South Wales by abolishing the Legislative Council. There would be required first a vote in favour of that in a referendum. The proposed Act was to be passed under a procedure in s.5B of the New South Wales Constitution Act 1902-1956, whereby legislation could be enacted ultimately without the consent of the Legislative Council. S.5B had been introduced into the New South Wales Constitution by an enactment of the New South Wales legislature under s.5 of the Constitution Act which went: ‘The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever.’
Held: The Act was effective.
This case is cited by:

  • Cited – Regina on the Application of Jackson and others -v- HM Attorney General CA (Bailii, [2005] EWCA Civ 126, Times 17-Feb-05)
    The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
  • Cited – Jackson and others -v- Attorney General HL (House of Lords, [2005] UKHL 56, Times 14-Oct-05, Bailii, [2006] 1 AC 262, [2005] 2 WLR 87)
    The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .

Syndicat Northcrest v Amselem; 30 Jun 2004

References: (2004) 241 DLR (4th) 1, [2004] 2 SCR 551
Links: Canlii
Coram: McLachlin CJ and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ
Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs on balconies of their co-owned property — Syndicate of co-owners requesting removal of succahs because declaration of co-ownership prohibits decorations, alterations and constructions on balconies — Whether freedom of religion infringed by declaration of co-ownership — If so, whether refusal to permit setting up of succahs justified by reliance on right to enjoy property and right to personal security — Whether Orthodox Jewish residents waived their right to freedom of religion by signing declaration of co-ownership — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 1, 3, 6. Constitutional law — Charter of Rights — Freedom of religion — Definition of freedom of religion — Proper approach for freedom of religion analyses — Canadian Charter of Rights and Freedoms, s. 2(a).
The court is concerned to ensure that an assertion of religious belief before it is made in good faith: ‘neither fictitious, nor capricious, and that it is not an artifice’
This case is cited by:

  • Cited – Regina -v- Secretary of State for Education and Employment and others ex parte Williamson and others HL (House of Lords, [2005] UKHL 15, Bailii, Times 25-Feb-05, [2005] 2 WLR 590, [2005] 2 AC 246, [2005] 2 All ER 1, [2005] ELR 291, [2005] 2 FLR 374, [2005] 1 FCR 498)
    The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Davis v Beason, Sheriff; 3 Feb 1890

References: 133 US 333 (1890), 33 L Ed 637, 10 SCt 299
Links: Worldlii
Coram: Field J
United States Supreme Court. The defendant claimed that the First Amendment insulated from civil punishment certain practices inspired or motivated by religious beliefs.
Held: The assetion failed: ‘It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society.’ The Court adopted a strictly theistic definition of religion.
This case is cited by:

Steele, Ford, and Newton v Crown Prosecution Service and Another Etc (Consolidated Appeals): HL 28 May 1993

References: Independent 10-Jun-1993, Times 28-May-1993, [1994] 1 AC 22, [1993] 2 All ER 769
The Court of Appeal Civil Division has no power to make an award of costs out of central funds. The court referred to: ‘the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over the levying and the expenditure of the public revenue’.

Regina (Javed) v Secretary of State for the Home Department and Another etc: CA 24 May 2001

References: Times 24-May-2001, Gazette 21-Jun-2001, [2002] QB 129
The fact that subordinate legislation had been enacted by affirmative resolution of both Houses of Parliament, did not make a decision made under that regulation immune from challenge in the courts. The question of whether a country was in general safe, was a matter of fact and for rational judgement. The Secretary made the decision, and a challenge was to that decision, and not to Parliament. It was possible that the applicants might bring sufficient evidence to show that a large part of the general population of Pakistan was not safe. If that was established then the court would have power to set aside a designation made by the Secretary under the Act.
Statutes: Asylum (Designated Countries of Destination and Designated Safe Countries) Order 1996 No 2671
This case is cited by: