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Harrison v Carswell (1975), [1976] 2 S.C.R. 200 is a famous pre-Charter decision of the Supreme Court of Canada where the Court denied the right to protest as a freedom of expression.
Sophie Carswell, employee of one of the businesses located in the Polo Park Shopping Centre (Winnipeg, MB), was participating in a strike and picketing in front of her place of work, when the manager of said shopping centre, Peter Harrison, requested that she and the other picketers leave the area or they would be charged with trespass under the Petty Trespasses Act of Manitoba (1970). Carswell continued to picket, and was therefore charged with trespassing. She was initially convicted by the County Court, but then this judgment was reversed by the Manitoba Court of Appeal. Harrison then asked for leave to appeal to the Supreme Court, and the case was heard by this Court in 1976.
The Court held that there was no right of a store employee to protest in a shopping centre when it was against the wishes of the centre. The centre was held to be sufficiently under the control of the owner and did not constitute a public place, thus the owner had the right to protect the private property under trespass.
The decision heavily relies on a case also previously decided by the Supreme Court of Canada, Peters v The Queen (1971), 17 DLR (3d) 128. In that case, the Supreme Court decided that the owner of a shopping mall had "sufficient control or possession of the common areas" of the mall so as to be able to claim that the picketers in the Peters case were in fact trespassing. As the Peters case could not sufficiently be distinguished from the Harrison case, Justice Dickson states, it could not be decided otherwise. In fact, deciding otherwise might have raised questions as to "the limits of judicial function".
The decision therefore tries to address three separate issues:
Justice Dickson and the majority of the Court found that the two cases were indistinguishable and, as the first one recognized to the owner the right to invoke trespass, the Court was compelled to make a similar decision in the Harrison case. The Court, therefore, refused to read an exception in the existing statute (The Petty Trespasses Act of Manitoba) for a lawful activity (in this case, striking), as such exception should be decided by the Legislature and not by the Court.
In one of his most famous dissents, Chief Justice Laskin held that the centre was a public place as the public had free access to the place.
Laskin also argues for a view of property rights balanced by the rights of others. He also distinguishes Harrison from the Peters case based on the fact that, in this case, the appellant had an interest sanctioned by law, in pursuing legitimate claims against her employer.
Additionally, he calls for a more reasoned adoption of stare decisis by the Supreme Court of Canada. This would allow the Court to depart from some of its previous decisions as it comes to realize that social conditions are changing:
In Post-Charter Canada the question remains unresolved. The Court's multiple reasons in Committee for the Commonwealth of Canada v. Canada [1991] 1 SCR 139 leave things particularly ambiguous. Shortly after the decision the Manitoba government amended The Petty Trespasses Act to allow picketing and other forms of communication of "true statements" on mall property. The legislation recognizes malls as public spaces where arbitrary withdrawal is no longer lawful on behalf of mall owners.
The Supreme Court of Canada is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. The Supreme Court is bijural, hearing cases from two major legal traditions and bilingual, hearing cases in both official languages of Canada.
Bora Laskin was a Canadian jurist who served as the 14th chief justice of Canada from 1973 to 1984 and as a puisne justice of the Supreme Court from 1970 to 1973. Before his Supreme Court service, he previously served on the Ontario Court of Appeal from 1965 to 1970. Prior to his appointment, Laskin worked as a lawyer and in academia.
Section 2 of the Canadian Charter of Rights and Freedoms ("Charter") is the section of the Constitution of Canada that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association.
CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13, is a landmark Supreme Court of Canada case that established the threshold of originality and the bounds of fair dealing in Canadian copyright law. A group of publishers sued the Law Society of Upper Canada for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.
Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference.
General Motors of Canada Ltd v City National Leasing is a leading Supreme Court of Canada decision on the scope of the Trade and Commerce power of the Constitution Act, 1867 as well as the interpretation of the Ancillary doctrine.
Canada (AG) v Lavell, [1974] S.C.R. 1349, was a landmark 5–4 Supreme Court of Canada decision holding that Section 12(1)(b) of the Indian Act did not violate the respondents' right to "equality before the law" under Section 1 (b) of the Canadian Bill of Rights. The two respondents, Lavell and Bédard, had alleged that the impugned section was discriminatory under the Canadian Bill of Rights by virtue of the fact that it deprived Indian women of their status for marrying a non-Indian, but not Indian men.
Nova Scotia v McNeil, [1978] 2 S.C.R. 662 is a famous pre-Charter decision from the Supreme Court of Canada on freedom of expression and the criminal law power under the Constitution Act, 1867. The film censorship laws of the province of Nova Scotia were challenged on the basis that it constituted criminal law which could only be legislated by the federal government. The Court held that though the censorship laws had a moral dimension to it, the laws did not have any prohibition or penalty required in a criminal law.
Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec, making the law system is bijural, as it is used throughout Canadian provinces except for Québec, which uses private law. In nine of Canada's ten provinces and three territories, tort law originally derives that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.
R v Hauser, [1979] 1 S.C.R. 984 is a leading constitutional decision of the Supreme Court of Canada, where, In a four to three decision, the Court upheld the federal Narcotic Control Act as constitutional under the peace, order and good government power. This case is particularly unusual as the Act had previously held to be constitutional under the Criminal law power in the decision of Industrial Acceptance Corp. v. The Queen [1953] 2 S.C.R. 273.
Dunlop v R, [1979] 2 S.C.R. 881 is the leading decision of the Supreme Court of Canada on participating in a criminal act by aiding and abetting. The Court held that the mere presence of the accused at the scene of a criminal act is not sufficient to convict the person for aiding and abetting a criminal act. There must be something more.
Reference Re Residential Tenancies Act (Ontario), [1981] 1 S.C.R. 714 is a leading Supreme Court of Canada decision on the jurisdiction of superior courts provided by section 96 of the Constitution Act, 1867. The Court formulated a three-step test for determining whether an administrative body was encroaching upon the jurisdiction of the superior courts.
Capital Cities Communications v. CRTC (1977), [1978] 2 S.C.R. 141 is a Supreme Court of Canada decision on the legislative jurisdiction of cable television. Chief Justice Laskin, writing for the majority of the Court, held that all television, even where exclusively produced and distributed within the province, fell within the definition of a federal undertaking under section 92(10)(a) of the Constitution Act, 1867.
British Columbia Government Employees' Union v British Columbia (AG), [1988] 2 S.C.R. 214 is a leading Supreme Court of Canada decision on the right to picket as a freedom of expression under section 2(b) of Canadian Charter of Rights and Freedoms.
Marsh v. Alabama, 326 U.S. 501 (1946), was a case decided by the US Supreme Court, which ruled that a state trespassing statute could not be used to prevent the distribution of religious materials on a town's sidewalk even though the sidewalk was part of a privately-owned company town. The Court based its ruling on the provisions of the First Amendment and Fourteenth Amendment.
Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp, [1979] 2 SCR 227 is a leading case decided by the Supreme Court of Canada. This case first developed the patent unreasonableness standard of review in Canadian administrative law.
Interprovincial Cooperatives Ltd v R (1975), [1976] 1 SCR 477 is a leading decision of the Supreme Court of Canada on the constitutional limits of provincial powers.
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Manitoba Fisheries Ltd v R (1978), [1979] 1 SCR 101, is a leading Canadian property law decision by the Supreme Court of Canada on expropriation. The court held that the Freshwater Fish Marketing Act, RSC 1970, c F-13, which granted a Crown corporation a monopoly over fish exports from Manitoba, deprived the appellants of goodwill. This deprivation amounted to an uncompensated regulatory taking.
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