TIME ALLOWED 3 HOURS pius 20 minutes reading time. There is no prohibition on starting to write before reading time has expired.

Transcription

1 Exam Code: Return this exam question paper to your Invigilator at the end of the exam before you leave the classroom. THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW FINAL EXAMINATION APRIL 2016 LAW CONSTITUTIONAL LAW FEDERALISM; CHARTER; ABORIGINAL LAW AND TREATY RIGHTS SECTION 3 PROFESSOR EDINGER AND PROFESSORS JACKSON AND MICKELSON TIME ALLOWED 3 HOURS pius 20 minutes reading time. There is no prohibition on starting to write before reading time has expired. MATERIALS PERMITTED casebook/course materials, notes, and a copy of the Constitutional Act 1867 to NOTE: Both Professor Edinger s and Professors Jackson and Mickelson s individual exams are attached as separate exams. You are free to answer the questions in any order you prefer. We will mark our own components independently. Your rmal Law 201 mark will be a combination of the percentage obtained in each component, weighted 2:1 for Federalism and the Charter.

2 1 THIS EXAMINATION HAS 4 PAGES PLEASE ENSURE THAT YOU HAVE A COMPLETE EXAMINATION THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW FINAL EXAMINATION APRIL 2016 LAW 201 CONSTITUTIONAL LAW FEDERALISM AND CHARTER SECTION 3 PROFESSOR EDINGER TOTAL MARKS 70 TIME ALLOWED 2 HOURS pius 10 minutes reading time. NOTE This is an open book examination. Students may bring into the room their casebooks, their notes and copies of the Constitution Acts, 1867 to If, in any problem, you consider that more information is needed, state what information is needed and explain the purpose for which it is needed. THIS EXAMINATION CONSISTS OF 4 QUESTIONS

3 2 MARKS Saskatoon has enacted an Anti-Bullying By-law, apparently authorized by the Saskatchewan Municipal Act. Susy has been ticketed under that bylaw. She wants to challenge her ticket because she believes that the bylaw breaches her right to freedom of expression (her parents used to read her the Charter for Children stories and she is taking Law 12 in high school). Susy s parents retain you to represent Susy. The bylaw prohibits anyone over the age of 12 from bullying another person in any public place and from aiding, abetting, encouraging or promoting bullying In any public place. Public place is defined as any place to which the public has access by right or by invitation. Bullying is defined in s. 2 as unprovoked repeated and inappropriate comment or conduct by a person which causes, is intended to cause or which a person ought reasonably to know will cause harm, fear or physical or psychological distress to another person and includes: (i) taunting, tormenting, name calling, ridiculing, insulting, mocking and directing slurs towards another person; (ii) kicking, pushing, hair pulling or pinching another person; and (iii) shunning, ostracizing, excluding another person and gossiping or rumour mongering about another person. The city police are responsible for enforcing the bylaw. Punishment for a first offence is a fine of $300 and for subsequent offences, fines of $300 to $2500 can be imposed. Susy has been charged with breach of s.2(iii) of the Anti-Bullying By-Law excluding and gossiping. Susy remembers several occasions when she and her group of friends were in a classroom at school and in a local fast food restaurant and the bullied classmate entered the room. Susy concedes that that classmate had never been invited to join the group and that she and her friends had lowered their voices considerably when the classmate entered but she asserts that the group had been discussing various matters including elections to the high school council and coursework and not the classmate. She does not understand why she should be ticketed as a bully for carrying on a quiet conversation or for failing to invite someone to join her group of friends. She insists on vindicating her rights. Draft an opinion letter for Susy and her parents, advising them whether you can challenge the by-law, setting out any Charter arguments which you can make, and specifying the remedy which you will be seeking.

4 The employees of A&A Inc. consult you. The employees want to be certified as a union and seek your advice. Do they qualify for certification from Board or must they approach the British Columbia Labour Tribunal? Their preference Is certification under the Canada Labour Code. the Canada Labour A&A is a federally incorporated company with branches in every province and is in the business of freight forwarding. Its head office is in Ontario and it has an integrated national corporate structure. Three regional vice-presidents oversee the local branch offices. Of course, each branch office has a branch manager but rates are set and asset acquisitions are dealt with on a national basis. In each province, using its own trucks and drivers, A&A picks up freight from individual shippers and consolidates It into larger shipments. A&A does not use its own trucks and employees to transport the consolidated freight over provincial boundaries, Instead, it contracts out Interprovincial transportation of the freight to third party trucking or railway businesses. However, when the shipment reaches the intended branch office in the destination province, A&A employees deconsolidate the freight and deliver it to the particular consignees. the Draft a memorandum advising the A&A employees whether they can apply to Canada Labour Board. the Pursuant to the Employment Standards Act, RSBC 1996 c.114, regulations have been enacted which govern the employment of children. Those regulations deal with various matters like hours of work, parental consent, education and safety and welfare. Children are often employed in the entertainment industry in films and in commercials. By Reg , the employer of a child employed in the entertainment industry must deduct 25% of the child s gross earnings and remit that 25% to the Public Trustee of British Columbia to hold in trust until the child reaches the age of majority. Lucy is a 10 year old actor who is starring in a film being shot entirely on location in British Columbia. She is employed by a Canadian film company incorporated in Quebec. Her home is in New York state. Her parents were irate when they were informed the film company had paid 25% of Lucy s gross earnings to the British Columbia Public Trustee. They denounced the regulation as unconstitutional because it has deprived an American citizen, Lucy, of property and has infringed her civil rights. They retained a Toronto lawyer who has commenced an action in British Columbia challenging the validity of the British Columbia law on the grounds of extraterritoriality. that

5 4 You have articles in the Ministry of the Attorney General of British Columbia. Draft an argument setting out the government s defence, if any The City of Montreal has enacted bylaws governing the issuance of taxi licences and regulating the taxi business. Under Bylaw No.12, the interior of the taxis must be kept clean at all times and taxi drivers are forbidden to have objects or inscriptions in their taxis that are not necessary for the taxi to be in service. Enzo is a taxi driver who is known to his fellow cabbies as the colleague with the messiest taxi in the company. He has family pictures and religious medals and icons and a crucifix displayed on his dashboard and hanging from his rear view mirror. Last year, a City inspector issued several tickets to Enzo amounting to fines of $1500 for breaches of the bylaw and the inspector threatened to suspend Enzo s taxi licence if he ever received another ticket. The Bureau du Taxi upheld the tickets despite Enzo s arguments that doctors and lawyers could put anything they wanted on their desks and that he ought to be able to have a crucifix in his taxi because the National Assembly has a crucifix hanging above the speaker s chair. Enzo has decided to appeal the decision of the Bureau du Taxi on grounds of freedom of religion under the Charter of Rights and Freedoms and he retains you for that purpose. Draft a memorandum for Enzo setting out for him the availability of s.2(a) of the Charter, whether you will likely be successful in invoking it, and what remedy or remedies you will seek on his behalf. END OF CHARTER AND FEDERALISM EXAM

6 THIS EXAMINATION CONSISTS OF 2 PAGES PLEASE ENSURE THAT YOU HAVE A COMPLETE PAPER THE UNIVERSITY OF BRITISH COLUMBIA ALLARD SCHOOL OF LAW FINAL EXAMINATION APRIL 2016 LAW 201B Constitutional Law: AborIginal and Treaty Rights Section 3 Professors Jackson and Mlckelson TOTAL MARKS: 100 TIME ALLOWED: 1 HOUR (PLUS 10 MINUTES READING TIME, DURING WHICH YOU ARE ALLOWED TO WRITE) NOTE: This is a limited open book examination. Students may use the casebook/course materials, notes and copies of the Constitution Acts, 1867 to The examination consists of one essay question. 3. Please take the time to think through and outline your answers, and to read over and correct mistakes before the end of the exam. Coherence and structure will be taken into account in evaluation. THIS EXAMINATION CONSISTS OF 1 QUESTION

7 Law 201b, Section 3 Page 2 of 2 MARKS Consider the following statement by McLachlin J (as she then was) in her dissent in Van der Peet: The history of the interface of Europeans and the common law with aboriginal peoples is a long one. As might be expected of such a long history, the principles by which the interface has been governed have not always been consistently applied. Yet running through this history, from its earliest beginnings to the present time is a golden thread the recognition by the common law of the ancestral laws and customs [of] the aboriginal peoples who occupied the land prior to European settlement. Do you agree with McLachlin i s assessment of the consistent recognition by the common law of Indigenous ancestral laws and customs? How, if at all, has this recognition changed and evolved over the years? And, in your view, does the current constitutional recognition of aboriginal and treaty rights reflect an appropriate contemporary form of this golden thread? Discuss with reference to specific examples from the material we covered this term. END OF EXAMINATION