CRIM 135

"literal" meaning:

what can be derived from the words alone and their arrangement in a sentence having regard to the rules of language alone.

applied meaning

the meaning of a text in relation to similar facts, or its effects on facts

R. v. McGraw: literal rule in practice

- Whether a threat to sexually assault a young woman was contrary to s. 264.1 of the Criminal Code, uttering a "threat to cause death or serious bodily harm to any person." - Should "serious bodily harm" take its meaning from death, or does serious bodily harm refer to harm of a lower threshold than death? - On plain reading, no interpretation required as no ambiguity in the term. "Other serious bodily" harm refers to harm other than death, that is serious in nature.

positivism critiques

- assumes laws are a valid set of rules by which we all agreed upon -can maintain classism, racism, sexism, by invoking colour/gender blind measures

marxist critiques

- challenging to find a society devoid of capitalist influences and without significant corruption - todays capitalist societies differ than those of marx - utopian and unachievable

intersectionist theories

- draws other forms of oppression as sometimes even more important than gender - while gender discrimination is present everywhere these oppressions are more important - those with privledge make room for voices and perspectives of those without it - see laws as a tool for good

marxist legal theory

- fusion of morality and science - capitalist societies will fail bc theyre oppressive - individuals are products of their social structures - socialism wouldnt need human rights protection since violations are a component of capitalism

anarchist

- law is used to control/oppress, government is unnecessary - were capable of governing ourselves through cooperative communities and power sharing - egalitarianism as key principle - no one has the right to coerce another person and that we have the right to defend ourselves against coercion - hypothetical

feminist limitations

- limited to topics that affect women - critiqued as assuming that gender is the primary basis on which people relate are discriminated against - could threaten mens rights

"intended"

- meaning (i.e., the meaning intended by the legislature): depends on context, which includes all the knowledge that is stored in the minds of interpreters.

critical legal perspective

- moral framwork about notions of equality (SN & LR) - discuss historical + political underpinnings of the law -language, social construction, economic disadvantage as a result of structural inequality -judges work around laws to write a judgement they seem fit -laws are limited to their application, written words are subjectively interpreted - politics can be good because you can change them

libertarian perspectives

- ought ti have complete power over your own life - freedom from state involvement - want to lessen the degree of state interference in our lives - should only stay to enforce contracts, intervene in violence/coercion

naturalism

- religious faith can serve as the basis, but in secular terms its about morality or universal principles like human rights law - an unjust law is no law at all - ascribes to ideals, ideas, or inherent human rights

Exclusive jurisdiction

- the federal government is not allowed to create legislation in the areas assigned to the Provinces.

indigenization

- to bring aboriginals into the academy, along with this personnel comes knowledge, theories, practices. Influences development of services, courses, infrastructure.

"audience-based" meaning

- what is understood by the audience - When public at large or a particular portion of the public: "ordinary" meaning.

Modern "Cardinal Rule"

-"The principles are guidelines, to be used as dictated by the specifics of individual cases." Consider textual meaning, legislative meaning, acceptable consequences, presumptions of intent. Consider the words, "in their entire context, in their grammatical sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament." (Driedger, 1983, 87)

case law (jurisprudence)

-Affected by the hierarchy of the courts in Canada as well as jurisdictional issues (courts within a Province have more say than courts from other Provinces). Higher court decisions are binding on lower courts, and persuasive on future decisions of same level courts. -distinguishing is a common way for courts to put aside binding decisions that do not want to follow.

The Literal Rule (the plain meaning)

-Ask: what is the literal, grammatical sense of the word? -The class rule (noscitur a sociis/ejusdem generis) -"It is known by its associates; " words in the same "class" should be treated alike. -The Exclusionary Rule (expression unius est exclusion alterius) -The expression of one thing necessarily implies the exclusion of others

patriation

-Bringing home... -Since the BNA, 1867 was a British document, Canada wanted to draft its own, Canadian version. -Problematic as there was no predetermined way of changing the constitutional document (amending formula). -Require unanimous consent of Provinces? Veto powers for the two largest Provinces?

statutes

-Canada subscribes to parliamentary supremacy -As such, statute law (codified law) should take precedence over every other source of law. -Theoretically, Parliament represents the will of the people (elected) and Parliament is accountable to the people via elections. -Judges, since they are appointed and not elected, are not thought to be as accountable. -Laws are created both by the federal and provincial governments, in the House of -Commons (federal) or the Legislative Assemblies (provincial).

The Golden Rule

-If the literal rule makes no common sense, then use common sense. Tones down the 1st rule to avoid absurdity. - The Narrow Application: Where words are capable of having more than one meaning the meaning which is least absurd in the section should be used. -The Wider Application: This is used to avoid a repugnant result (contradictory result against general Canadian law).

The Literal Rule (assumptions)

-Courts cannot interpret words differently even if the result is illogical in the context of the statute. -Deference to Parliament -Cannot assume legislators made errors/omissions. -E.g.: Dogs on leash at a park does not apply to cats. -It is possible to determine the plain meaning of a text simply by reading it . -In reading, as opposed to interpretation, the determination of meaning relies solely on textual factors which are apparent on the "face" of the text. -Extra textual factors, such as legislative history or absurd consequences or the presumptions of legislative intent, have no role to play in reading

amending formula

-Created what becomes known as a 50/50 formula: -Requires support from the House of Commons and the Senate, but also support from 2/3 provinces, representing at least 50% of the population of Canada. -Could be only 7 Provinces in agreement; must include either Ontario or Quebec to make it to the 50% mark. -But, no Province officially given veto power

enacting the charter

-Due to the criticisms of the bill of rights, and after much debate for nearly two decades, then Prime Minister, Pierre Trudeau drafted the Charter of Rights and Freedoms. -Considered a necessary restraint on Parliamentary Supremacy, needed to secure the core principles of justice on which Canada was founded. -Major legal distinction from the Bill of Rights: entrenched as Constitutional Law in Canada. -Due to the limitations clauses in the Charter, others suggest that Parliamentary Supremacy has not actually been affected.

Division of Legislative Powers (Ss. 91 & 92)

-Each Province considered self-governed, with limitations. -Allows Provinces a significant degree of control over matters that are seen to be local -The federal government has jurisdiction over matters deemed national in nature, yet the Provinces retain power over their individual territories. -Feds retained the residual power (POGG: Peace, Order and Good Government) Exactly which level of government gets control over what is detailed in ss. 91 and 92 of the Constitution, and has been the subject of much legal debate over the years.

British North America Act, 1867

-Establishes Canada as a self-governing nation with few ties to the united kingdom. -Ultimate legislative authority retained by England through Governor General. -Originally comprised of Ontario, Quebec, Nova Scotia & New Brunswick. -American invasion key instigator for move towards a united system. -Dates for remaining Provinces: Man 1870, BC 1871, PEI 1873 Alb and Sask 1905 and Nfld 1949.

Grammatical Principles

-Expression of one excludes the other. -Ambiguous words can be interpreted based on the context in which they appear.

The Golden Rule (R. v. Audet)

-Facts: (pervy teacher) 22 year-old man who, shortly after his teaching contract ended, had sexual contact with a 14 year-old girl whom he had taught the previous year in eighth grade. At the time of the sexual encounter the accused was aware that his contract would be renewed the following year and that the girl might become his student again. -153. Every person who is in a position of trust or authority towards a young person ... and who for a sexual purpose touches ... the body of the young person ... is guilty of an indictable offence.... -Question for the court: Did he occupy a position of trust or authority at the time of the sexual contact? -Authority: any relationship in which the accused exercises power; not necessary for formal relationship (teaching contract) to exist. -Note, difference in interpretation if court had focused on "occupy a position" instead.

additional amending formula

-For matters concerning the queen's representatives, restructuring in the House of Commons or Senate, use of French or English language, composition of the SCC. -Note if language matter is localized to a Province, only the Federal government and the Province in question need to agree. -Requires unanimous approval from Federal and Provincial governments. -Thought to be of such national significance that a higher threshold for amendment was necessary.

Judicial Precedence

-Historical decisions by judges on similar issues or facts -Based on the idea that we should all be treated the same way as a matter of fairness -But, of course there are mitigating and aggravating factors to consider. -Ability of the S.C.C. to reverse itself.

Current issues re Federalism

-Indigenous rights to self-government, land treaties, reconciliation. Quebec as a distinct society in Canada, or a nation within a nation? Senate reform - purpose in question as legislative approval from appointed, "partisan" members seems to veto elected MP's. -Continued tension regarding the Charter of Rights and Freedoms. Judicial activism v. deference to Parliament.

Custom (convention)

-Laws are often codified customs. -If area without written law , turn to custom (or convention for constitutional issues) to determine how to proceed. -Space for oral histories and Indigenous legal principles, too.

statutory interpretation

-Necessary to define terms in statutes and determine whether statutes apply in particular contexts. -The judge's role. -Example: if a hound is not a "dog" and a statute refers specifically to "dogs", then the legislation does not apply to hounds.

rejection of constitution 1982

-Quebec's legislative assembly voted to reject the constitution in 1981. -Petitioned the S.C.C. to declare that constitutional amendments required the agreement of Quebec and that Quebec should therefore have a veto power. -S.C.C. dismissed arguments, finding no requirement for unanimity in the BNA Act nor in customs. -Found that customs/conventions showed the Federal government ought not proceed unilaterally. -Multiple attempts to appease Quebec's concerns about diminished powers: Meech Lake and Charlottetown Accords. -Neither ultimately passed and the issue of separatism in Quebec remains today

History of Canada's Constitution

-Recognition of Indigenous Legal systems. -Diverse systems, practices, maintained throughout colonization. -British & French colonization begins in late 1500's; both England and France considered Canada to be theirs, in spite of the presence, and resistance, of Indigenous peoples. -Britain and France at war for control; treaties/promises made to obtain support from Indigenous peoples- later reneged. -Process of reconciliation only now beginning.

The Constitution Act, 1982

-S. 52(1) The Constitution of Canada is the Supreme Law of Canada and any law that is inconsistent with the provisions of the constitution is, to the extent of that inconsistency, of no force or effect. -Includes the Charter of Rights and Freedoms -All other legislation (federal, provincial, municipal) and acts of government must be in accordance with both the Constitution & the Charter.

BNA Act, 1867

-Sets out the basis for the parliamentary system existing today. -Identified as Canada's original and defining source of law. -Now known as the Constitution Act, 1982. -Sets out division of powers between branches of government, Provinces and Federal levels of government.

statute of westminster

-Severed Canada's legal system from England. -No law hereafter made by the Parliament of the United Kingdom shall extend to any dominion otherwise than at the request and consent of that dominion. In practice, developed into several judicial system, too.

Effect on Parliamentary Supremacy

-Some suggest that legislation such as the Bill of Rights, or the Charter, undermines parliamentary supremacy. -Elected members ought to legislate; they are accountable to the citizens though democracy. Others suggest that the inherent rights and freedoms in these documents allow citizens to exercise their democratic rights more fully, thereby increasing democracy and citizen engagement in Parliament. -Freedom of Expression, Association, Religion, Right to Equality, security of the person, etc.

divison of powers

-Ss.91 and 92 delineate which level of government has jurisdiction (right to govern) over legal matters. -S. 91: identifies all areas to governed by the federal government. -Essentially, everything not contained in s. 92, along with matters contained in s.91 and the residual POGG power. -S. 92: all matters to be governed by Provincial governments.

Constitutional Law

-Tells us about Canada's governing structure, how the separation between provincial and federal governments should work, the rules by which our governments must govern and the rights, freedoms and to a certain degree responsibilities of Canadians. -Includes both the Constitution Act and the Charter of Rights and Freedoms Constitutional law is unique in how it can be altered: -cannot simply pass a new law in Parliament. As "entrenched" has its own unique AMENDING FORMULA

Legal Conflicts

-The division of powers has been the subject of much statutory interpretation over the years. -Often, legal areas overlap and there is a dispute as to which government ought to be able to legislate. -Consider the case of PHS Community Services Society v. Canada. -To complicate matters further, intergovernmental cooperative agreements are often in place. -Equalization payments to poorer provinces so that all Canadians have equal access to similar services.

External Aids to Statutory Interpretation

-These are aids found outside of the statute which may help judges understand the meaning of a statute more clearly. -Dictionaries (can include looking to French term, too) -Historical setting (note changes in understanding terms) -Previous Statutes -Earlier case law -Hansard (record of Parliament debates) -Law Commission Reports -International Conventions

Internal Aids to Statutory Interpretation

-These are things found within the statute which help judges understand the meaning of the statute more clearly: -the long and the short Title -the Preamble: -Definition sections ( Eg. S.2 of the Criminal Code) -Schedules -Procedural component to enact legislation. -Headings

Purposive v Literal Approaches

-Today, most Canadian courts follow a purposeful approach to interpretation. -With the literal approach, (plain meaning) judges give words their literal meaning. their job to not to make the law but to apply it. -With the purposeful approach, judges try to decide what the purpose of the statute was (what was Parliament attempting to achieve?). -The courts respect the actual words used but rather than stick rigidly to them, interpret them in the context in which they appear, and according to the underlying purpose of the statute.

Royal Proclamation of 1763

-Tries to bring British rule to Quebec (civil law system) -Recognizes "Aboriginal" right to self government ; land claims continue today.

The Province of Canada

-Upper Canada -Ontario, Assigned most powers, Use of Britain's common law system -Lower Canada -Quebec, Civil law, Roman Catholic influence.

The Rule in Heydon's Case (The Mischief Rule)

-What mischief was the statute trying to prevent? Interpret the wording accordingly.

Origin of Canada's Constitutional Law

-british North America Act, 1867. -Act passed by Britain, outlining how Canada should be formed. -Set out the Division of Powers (ss.91 and 92) between the federal and provincial governments. -Provided for a "bicameral Parliament" where the senate is in place to approve legislation passed in the house. -Required final approval for legislation through British representative (Governor General) and final appeal court as England's Privy Council. -All legislation pass in England, and judicial precedence applied in Canada, too.

positivism

-rooted in parliamentary supremacy - no penalty without valid law -fair political system suited to represent us

Return to the "Persons" case

-s. 24 (BNA (1867)) The Governor General shall from time to time, summon qualified persons to the senate; every person so summoned shall become a member of the Senate. -Were women included in the word, "persons?" -Decision: -SCC said, no. "Person" was used on many statutes which did not apply to women. In the political and social context, women were not considered to be "persons." -Appeal to the Privy Council. What was Parliament's intention when it used the word, "person?" Found no intention to specifically exclude women from the word, "person."

books of authority

-same as current practice of using textbooks, research reports and expert -witnesses to provide court with information about a law, phenomena or practice. -Charter challenge in Bedford v. Canada decision has 25,000 pages of evidence. -Use of "experts" by the courts increasing as social impacts of laws and enforcement become more clear.

Gorris v Scott

-sheep go overboard. -Act's purpose was to prevent spread of disease, not ensure livestock remained on the ship. -The failure to cage the sheep did not fall within the "mischief" of the act. -Early iteration of the 'purposive approach'

Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Fundamental freedoms

2. Everyone has the following fundamental freedoms: freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

Enforcement/ Remedies

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Aboriginal Rights and Freedoms

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. 35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

democratic rights

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. 4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members. (2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be. 5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.

application of the charter

32. (1) This Charter applies to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

mobility rights

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada

Legal Rights

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has [certain] rights on arrest or detention 11. Any person charged with an offence has the right to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again. 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

"Associated words" rule:

A word is know by the company it keeps (subsequent specific words). -E.g: Sins, such as sloth, gluttony, envy or pride = safe to assume referring to seven deadly sins Mirror images of same principle.

R v Oakes

Accused charged with possession of drugs for the purpose of trafficking (s.8 NCA). S. 8 contained a reverse-onus clause. Shifts the burden to the accused when the burden to prove legal issues is generally on the Crown. I: Validity of the reverse onus. Did it violate the accused's right to the presumption of innocence and a fair trial contained in s. 11 of the Charter? If it violates the right, is the violation demonstrable justifiable in a free and democratic society (s.1)? Is the violation considered necessary (or saved)?

mobility rights in practice

All citizens have the right to come and go from/to Canada. All citizens and permanent residents in Canada have the right to move to, live in, work or have businesses in any province or territory in Canada. Deportation of permanent residents/revocation of citizenship in specific circumstances E.g.: serious criminal conduct People may have to meet provincial requirements to work in some occupations. Provinces may also require people to meet residence rules to receive social services like welfare. extradition: Citizens can be forced to leave Canada through court proceedings to be prosecuted for crimes in another country.

Categories of Law

Domestic Law (laws within a country which apply solely to persons within the country) is divided into public and private laws o Public ( constitutional, criminal, administrative, taxation, international ) o Private (contracts, torts, family, property, wills, etc)

history of charter

Emerged out of the limitations of the Canadian bill of rights, 1960 and the international movement to protect human rights and civil liberties. Universal Declaration on Human Rights, 1948. Entrenched in the Constitution Act, which means it, too is supreme law in Canada. All other legislation must come into alignment with the Charter, unless the courts find that a certain right or freedom needs to be limited in accordance with the principles of a free and democratic society.

canadian bill of rights

Federal statute, applied only to federal laws and governments. Began the codification of a set of core principles on which Canadians generally agree. Increased the role of judges as interpreters of the laws and as a restraint on governmental power.

rememdies

If a law violates the Charter, the court can: strike out the part of the law that violates the Charter interpret a law narrowly so that it fits Charter rights ' read in' features to the law so that it meets Charter requirements declare that you are not affected by the law that violates your Charter rights (a constitutional exemption) Where government action under a law violates the Charter: Declarations (Statement) Injunctions (Making someone act a certain way) Damages (Money) If Charter rights are violated in a criminal case: Stop the criminal prosecution, order a new trial. Exclude evidence under section 24(2),

THE OAKES TEST

If right/freedom is violated turn to s.1 and determine -the objective of the legislation (must be pressing and substantial) -The means employed to meet the objective (rationally connected, minimally impairing, proportional) Charter violation related to law (if related to acts 24)1) or 2 -S.1 oakes test (conclusion: unjustifiable limitation -Case successful (seek appropriate remedy) -S.1 oakes test (concludion: justifiable limitation) -Case dismissed (law upheld)

S. 13 - Protection from self-incrimination

If you are a witness, what you say in court cannot be used against you in another court case, except in perjury charges. If you tell a falsehood while under oath/affirmation, you can be convicted of perjury.

rights upon arrested

If you are arrested or detained, you must be given reasons for this right away; the police must tell you of your right to a lawyer; if you say you want a lawyer, police must stop questioning you until you have a chance to speak with a lawyer privately. If your detention is not legal, you must be released. R v Orbanski, 2005 generally police need to inform people of rights prior to detention, except in the case of drinking and driving roadside stops. R v Brydges, 1990 If a person who has been arrested is hesitant to speak to a lawyer because of cost, the police must let the person know of free legal help.

s. 11 rights when charged

If you are charged with a criminal offence you have the right: To be informed of the offence without unreasonable delay To a trial in a reasonable time To be silent (the right not to testify at your own trial) To be presumed innocent until proven guilty To a fair and public hearing by an impartial and independent court. To reasonable bail (unless there is good reason to be refused bail) To trial by jury for serious crimes (except for military offences decided by a military tribunal) Not to be convicted of a crime unless the act was a crime at the time it happened Not to be tried or punished twice for the same crime (the rule against double jeopardy)

Judicial Power

Independent branch of government to interpret the laws and ensure they are enforced in accordance with the charter

strengths and limitations of the charter

Judicial review Encroachment on Parliamentary Supremacy Hampering police investigation Protecting rights of persons under criminal investigation Focus on individual rights rather than collective Only affluent persons can afford to challenge the rights Nothing relating to economic equality No accountability for judges making politically contentious decisions. S.33, s.1 reduce the power of the Charter Universality in question in a multi-cultural society.

Defining "Aboriginal rights"

Much debate re definitions. Must the activity have been practiced prior to European contact? What kind of evidence is satisfactory to prove the case? (oral history, scientific verification?) Does this freeze rights to some point in the 1500-1600's and ignore rights, freedoms, activities that evolved after that point? Generally includes rights to land (treaty issues), rights to hunting/fishing/gathering, right to self-determination/self-governance, rights to practice culture, language, religions (cultural integrity), right to enter into treaties.

Peaceful assembly & association

Peaceful assembly has not had a major impact on the case law. includes the right to meet as part of a committee or as workers. Association provides individuals the right to establish, belong to and maintain to any sort of organization. Used in the labour context allowing employees the right to associate with their unions or other similar group to represent their interests in labour disputes or negotiations. Includes a procedural right to collective bargaining. Concerns re bill c-51: if national security issue, can be targeted for association with "terrorist" groups. Unclear definitions, suspension of Charter procedural rights, no accountability for CSIS.

preamble

Preambles often used to establish a statute's general purpose, to determine if it is a declaratory or public order statute, to ascertain its jurisdiction over persons and its territorial effect. Used to refer to the social mischief - the social problem it was attempting to remedy.

Key Conflicts under s. 2(b): Freedom of Expression

Prohibited Speech (still considered expression as it conveys a meaning): "Hate Speech" Criminal laws prohibiting people from advocating genocide or inciting hate against an "identifiable group" is constitutionally justified. Indictable offence valid (Keegstra) Look for "extreme speech" that goes beyond ridiculing (Whatcott). "Obscenity" Ban on publishing "obscenity" upheld under s.1 due to concerns about minority rights and equality rights. (Butler, Little Sisters, Sharpe)

Structure of Canada's Government

Queen's Representative: Governor General Legislative Power (Parliament) Consists of House of Commons and Senate Executive Power (Prime Minister) Cabinet Judicial Power (Supreme Court of Canada) Provincial and Federal Courts Lower, Superior & Appeals

role of charter

Restrains elected governments from passing discriminatory laws by enabling the court to review legislation against protected rights and freedoms.

language rights ss.16-23

S. 16. (1) English and French are the official languages of Canada and have the equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. S. 22: existing rights to use languages besides English and French are not affected by the fact that only English and French have language rights in the Charter. if there are any rights to use Aboriginal languages anywhere they would continue to exist, though they would have no direct protection under the Charter. S.23: Right to Minority Language education French in English majority provinces, English in French majority provinces

ss. 12-14

S.12 - Protection from cruel and unusual punishment People are protected from cruel and unusual punishment such as punishment that degrades human dignity, is out of all proportion to the offence, or shocks the public conscience.

the notwithstanding clause

S.33(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in s. of this Charter. Operates for up to years Quebec used s. 33 to override freedom of expression and equality by requiring signs to be in French. Saskatchewan and Alberta used it to bar essential services employees from . A government cannot use section 33 to ignore under the Charter.

scope of s.15

Section 15 recognizes the dignity and worth of everyone in society. It is not always a question of treating everyone the same, but looking at circumstances to ensure everyone benefits equally from the law. - Gladue & s. 718.2 of the Criminal Code entirely constitutional. It means protecting vulnerable people from discrimination, and removing discriminatory barriers that put people at a disadvantage. Remember, the Charter applies to . It generally does not apply to private business or personal relationships.

Key conflict areas (s.2(a))

Sunday closing laws Accommodation of religious practices Parental Rights (re blood infusions and other medical treatments) Marriage solemnizing Education (access, curriculum, wearing of a "kirpan," (employing Buddhist practices of mindfulness?) Religious accommodation in court proceedings. (R. v. NS (2012); Ishaq v. Minister of Citizenship and Immigration (2015))

S. 1: Limitation Clause

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Any limitation of rights/freedoms must be demonstrably justified in a free and democratic society.

third reading

The bill is returned to either the House of Commons or the Legislative Assembly. Vote and then over to either the Senate (federal), then Governor General, or straight to the Lieutenant Governor (Provincial) for approval.

second reading

The government sets out the purpose of the bill and a debate occurs. Sent to a committee for further debate, even requiring public debate or consultation.

scope of s.7 rights

The rights under s. 7 are not just about criminal law. the right to life might involve health care. The right to liberty can mean the right to act without state interference - such as a person deciding when to die (Rodriguez v Canada, 1993), or seeking safer methods of injection for an addiction (Canada v PHS Community Services Society). Security of the person is about protecting people from serious harm to physical or psychological well-being. This might arise where the state was taking children from parents (NB. v. G (J), 1999) or deporting someone to a country where he or she faces torture (Suresh v. Canada, 2003).

legal meaning

When the specialized sub-group consisting of lawyers and judges

"technical" meaning

Where a specialized sub-group, audience-based meaning is

S.9 - Arbitrary detention

You have the right not to be arbitrarily detained or imprisoned. This means you cannot be stopped, held for questioning, arrested or put in jail unless the police have a good reason to do so. R v Mann, (2004) (Detention for the purpose of investigation does not violate s. 9) R v Ladouceur, (1990) (Random spot checks of drivers can violate s.9, but might be justifiable under s. 1

s.8 unreasonable search and seizure

You have the right to a reasonable expectation of privacy . Limits how and when police or other officials can search you personally; search your property; or use wiretaps. Limits the power of the state to take your property. In most situations, police or other officials must get a search warrant from a judge before they can search you or your property. R v Tessling (2004) Heat-seeking helicopters ok

S. 14 - Right to an interpreter

You have the right to an interpreter in a courtroom if you are a party or a witness in a case and do not understand or speak the language used in the court. You also have this right if you are hearing impaired.

to prove a s.15 violation you must show

You were treated differently from others because of a ground of discrimination: race, national or ethnic origin, colour, religion, sex, age, mental or physical disability) or an (a personal trait like sexual orientation, marital status, or citizenship) E.g.: Halpern (2003), The common law definition of marriage, which defined marriage as between one man and one woman, violated s.15. The unanimous Court found that the exclusion of same-sex couples was a clear violation of the Charter; an unreasonable infringement of s.1. Results in a change to law, redefinition of civil marriage to involved two persons.

mischief

a defect or limitation that the law was attempting to control/remedy.

radical feminism

a minority view within feminism - intentional oppression: rather than people being influenced by societal values, people strive to maintain oppression - believes reforms are impossible due to institutions being built on patriarchal underpinnings in the interest of men

liberal feminism

challenges the law but also the cultural issues behind the law, the political underpinnings of institutions that foster gender discrimination - lack of women in parliament -seeks reform from within institutions

mitigating

circumstances that make someone's actions more reasonable or understandable.

aggravating

circumstances that make someone's actions more reprehensible, more serious

secular naturalism

each individual must never be forced to do something they dont want

Legislative Power

in accordance with jurisdiction, is granted to a specific branch of the government, where elected members of Parliament are found. Foundation of democracy

first reading

introduce Bill into either the Provincial Legislative Assembly or the Federal House of Commons. o And the politics begin; most bills die at this stage.

International Law

is a separate category, usually created by the United Nations, of which Canada is a member. o Countries sign on to treaties/conventions and agree to bring their domestic laws into alignment with international laws. Challenge becomes what to do when a country doesn't ratify the laws...

LR critiques

lack of cohesiveness, lack of positive action, assumes each judge is unable to make rational decisions devoid of interests, politices things to an unfair degree

theological naturalism

look at a higher power and beyond the particular law

intra vires

means that the government has the legal authority to act, because such authority is found within its legislative power.

ultra vires

means the government has over-reached and tried to legislate in an area over which it does not have legislative authority (beyond the powers).

legal realism

not as simple as positivism and naturalism - law is context specific (politics/economic) - reflects the ideas/beliefs of those who enforce them - skeptical and critical in nature

main sources of law

o Statutes ( legislations) o Cases Other Sources: o Convention o Books of Authority Note- sources of law are not solely Canadian: we used to be bound by English laws and today still consider English, American, Australian laws to be highly influential

decolonizing

openly/truthfully acknowledging colonial past. aboriginals and allies work together to decolonize/indigenize, this is action oriented reflected in social movements and everyday life. education like the renewal and strengthening of culture and language are key components

Executive Power

prime minister and cabinet are responsible for executing (or applying) the laws and decisions made by the legislature.

"dictionary" meaning:

rely on authoritative texts.

feminst legal theories

similar to critical legal, but with gender - laws are framed from a male POV, history has been written by men therefore not reflecting women - focuses on divorce, reproductive, rights, violence, education, discrimination

CLP critiques

unsupportive of majoritarian rule, protection of minorities, linked to marxs utopian society, level of reform is impossible in our regime

anticolonial perspectives

view the existing legal system as a form of state oppression, however they leave room for a legal system designed by indigenous people reflective of aboriginal tradition - law is a primary tool of colonialization - indigenous self governance - recognition of indigenous legal systems

same nature rule

where specific words are followed by general words, then the general Words are limited to things of the same kind (that have appeared prior). --E.g: Cats, dogs and other animals = other domestic animals. No lions.

naturalism critiques

whos version of morality counts? - can be irrational and result in widely variant conclusions - comes into conflict with democracy