Judiciary and the Constitution

Section 1 of the Charter:

"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"

S.25-30 Identifiable Groups Specifically whom?

Aboriginals S.25 deals with treaties S.35 protection from anything not covered

Positive Rights are: a) entitlements b) right to vote c) not the source of direct harm

all of that

S.2 Fundamental Freedom Who do they apply to?

anyone living in Canada

Why does the father not need to give consent for an abortion to take place?

apply S.7 for the mother

Do "human rights/civil rights ..." appear at the federal or provincial rights code?

both

"The law of Ancient Rome, especially that which applies to private citizens. Judgements are based on codified principles rather than on precedents" is which form of law?

civil code

"The rules developed by the courts and based on the priniciple of stare decisis" is what form of law?

common law

There are 4 specific legal systems. What are they?

common law civil code religious law customary law

Which one(s) do we follow in Canada?

common law and civil code

"The whole body of fundamental rules and principles according to which state is governed. It is established order and allow for the peaceful resolution of conflict in society. Politics allocates power, courts rule on allocations" :

constitutions

Which type of law is very uncommon?

international law

S.33 cannot override: a) democratic rights b) mobility rights c) language rights

jokes on u its all 3

a rule of conduct or procedure established by custom, agreement, or authority:

law

Has the federal government ever used the Notwithstanding clause?

no

Was the women who shot a bb gun into her- almost killing her baby, charged?

no - cannot be charged

1988 Morgentaler

outlawed Criminal Code restrictions on abortion - no definition of fetus - not human until its born

Are politicians hiding behind the judges?

passing off controversial decisions to judges ex. same sex marriage / abortion

Are the court decisions making public policy?

politics takes place in the courtroom rather than in the legislature

What are the two types of rights?

positive and negative

Stare decisis is also know as what? Define the term.

precedent other cases looked at to help decide another

S.15 Equality Rights What does it do? What groups does it take into consideration?

protection from discrimination under the laws any disadvantaged groups - women, aboriginals, people with disabilities ...

S.3-5 Democratic and Mobility Rights Democratic apply to whom? Define Mobility Rights.

rights only allow Canada citizens to vote can move anywhere in Canada

S.7-14 Legal Rights What do legal rights include? What does S.7 specifically deal with?

rights to fair trial, warrant, innocent till proven guilty ... S.8-14 deals with trials/court systems life, liberty, and security

Define the term "judicialization"

taking the courts position and applying it to something that shouldn't have the courts position

Which Court of Canada hears cases of taxation, patents, copyright and administration?

Federal Court of Canada

Supreme Court of Canada: a) how many justices are there? b) who are they appointed by? c) how many must be from Quebec? why? d) are the decisions binding?

a) 9 b) PM c) 3 they have civil code d) yes

1900 Keegstra

- determined the freedom of expression does not apply to dissemination hate literature -told students holocaust didn't happen -the wrong part was telling them they had to agree with him

1985 Singh - Refugee

- provided refugees with the right and to a full and oral hearing because of "fundamental justice" -came to CAN trying to obtain refugee status from Indian -denied but he said if they went back he would die -used S.7 and WON

2006 R v Morris

-Indian Act/Treaty Rights -two men wanted to hunt at night in BC - this is illegal -when they got caught they said it was allowed in their treaty -SSC was in favour

Charter of Rights and Freedoms: (random list)

-criticism of Charter of Rights and Freedoms -Reduced democracy -american individualism -class based advantages -minority benefit -restricts police behaviour

1986 Oakes

-established guidelines for interpreting the "reasonable limits" clause

Sources of Rights:

-human rights, civil rights, legal rights and social right -not in the constitution

Judicial Independence:

-judges must be "above" politics -courts do not change ideologically as governments do -judges aren't beholden to politicians or parties

1992 Butler

-limited "freedom of expression" in relation to porn -sexual freedom of expression -owned a sex shop but was constantly be charged -porn is allowed as long as: does not show violence, dehumanizing, or children

Safeguards of Judicial Independence:

-security of tenure of judges -financial security -administrative autonomy

Provincial Human Rights Codes

-similar structure -applies to provincial jurisdictions -increased detail (ex. treatment of persons under 18)

1985 Big M Drug Mart

-struck down Lord's day act as violation of "freedom of religion" -infringed on other people's freedom of religion - cooperations right of religion

1993 Rodriguez

-suffering from ALS wanted someone to kill her -suicide legal but help someone was not -concluded that "security of the person" does not include right to assist suicide

2001 R v Sharpe

-violation of freedom of expression - child porn was his expression -let him keep the visual drawing and journals - no harm -charged for videos/cannot sell the drawings

2005 Chaouli vs Quebec

-wanted to provide at home house care -he said it wad violating S.7 -SSC did not agree (still option of care) -Quebec Chart S1 did agree

1984 Skapinker: Ontario Law did not violate "mobility rights"

-was a law student from South Africa and when he graduated applied for Canadian bar - denied cause he was not a citizen -took it to court under "mobility rights" -LOST; nothing to do with it

Which Aboriginal group(s) is recognized in the Charter? a) First Nations b) Metis c) Inuit d) all of the above

A

Under S.24 Judicial Review is the power to: a) intervene during emergency b) the courts ability to determines if laws are constitutional c) the court determines if the actions of other branches of the government are constitutional or not

C

Chart and Human Rights Act, which is what?: a) established the relationship between citizens and the state b) established relationship between (citizens and state, and citizens and each other)

Chart - A Human Rights - B

"deals with the rules, practices, and institutions which constitute the state"

Constitutional law

Which Canadian province follow "civil code"?

Quebec

Which three provinces have used the Notwithstanding clause? Which where successful?

Quebec- to apply both languages Alberta- same sex marriage Saskatchewan- freedom of association all no

Which Section of the Charter needs to be applied to justify limiting a right?

S.1

You have the right to put your child in French or English school under which Section of the Charter?

S.16-22 Language Rights

A clause that allows the federal and provincial government to cover ride and decision make on a right or freedom is known as what?

S.33 Notwithstanding Clause

Which Section do abortion laws fall under?

S.7

Why are they called "negative rights"? Give an example.

could possibly cause harm to someone else - freedom of religion

Which of the following is an example of "human rights": a) driving b) voting c) freedom of religion

driving

Federal judges are appointed by __ branch with no need for confirmation by the __

executive legislature

Is the "Canadian Human Commissions" federal or provincial?

federal

Prohibited grounds of discrimination are found at what level? Give examples.

federal race, national or ethnic origin, colour, race, religion, age , sex ..

What are the two forms under the Human Rights Act?

federal and provincial

Who is the "holder of rights"?

individual rights and group rights - (multiculturalism, gender, Aboriginals)

Laws that relate to people causing harm to another then suing is referred to as what?

torts

Constitutional conventions and the bulk of common law before 1867 are:

unwritten

1867 BNA Constitution Act Bills of Rights and Charter are all examples of: (written or unwritten)

written

The constitution consists of both __ and __

written and unwritten