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COMM 2501 (12)

Class 3 January 20th.docx

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Communication Studies
COMM 2501
Klaus Pohle

Class 3 The charter protects certain guarantee’s rights We had freedom of expression before the charter of rights, but it wasn’t protected constitutionally The supremacy of parliament…parliament is no longer supreme in court The division of power between parliament and the courts, has been criticized. Judges are not accountable to anyone. They sit in judgment and they don’t have to explain themselves. The judicial ruling is independent of political influence Judicial council..sits in reviewment of judges conduct. Unelected judges sitting in judgment Charter doesn’t just guarantee certain freedoms that weren’t guaranteed before, but it also removes some of the power that parliament and the legislators have had. As a result, the dynamics, the relationships between the people, elected officials, and courts have changed fundamentally The charter was acted to protect individual rights, it reflects the American constitution and the American bill of rights. The American constitution is almost obsessive of individual rights the Canadian charter of rights and freedom is a reaction to the British constitution, the British constitution is more towards collective rights. In England, the emphasis on legislation is more towards the notion of protection of society, rather than the individual. So the American bill of rights and Canadian charter or rights is a reaction against this, because we have said that the individual, is more important than the collective except in random circumstances. The first array of charter cases, after 1982, when legislation was first challenged, using the guaranteed rights in the charter, reflected the idea of protection of the individual. There has been a shift, and it is because the charter doesn’t say anything about individual rights, so the court have used the charter not only to protect individual rights, but also collective rights and overwritten the rights of the individual. Example: hate propaganda case in 1990s against jame keepster alberta teacher, who was accused of spreading hate, he taught in a high school saying the holocaust didn’t exist, the hate propaganda law was in place, but the rights of the collective was more important than the individual rights. The Canadian abortion law was struck down as unconstitutional because it interfered with a woman’s right to control her own body, the collective rights, as argued as fetus’s and societies as a whole, were secondary to a women’s right to control her reproductive processes. Ex: child pornography law struck down as invading and intrusion as the individuals right to posses certain types of literature, in British Colombia. Then went to supreme court, Which squashed this decision. Before 1982, the Canadian constitution consisted of the “British North American Act”  An English document, in this document, there was no guaranteed civil liberties, freedom of expression, speech, the press and so on were not guaranteed, weren’t even mentioned. What we had was a federal system where a division of powers was emphasized. The division of powers between the federal parliament and the provincial legislators. Section 91: Distribution of Legislative Power, powers of parliament. Initially, the powers to regulate broadcasting, aviation, fell to the federal government. 2) regulation of trade and commerce is a federal jurisdiction. 3) the raising of money by any mode or system of taxation -> now is provincial. 15. banking. Banking is a national federal jurisdiction. Uniform across the country. No fragmentation like the united states. 27. the criminal law, except the constitution of courts and criminal jurisdiction, but including the procedure in criminal matters. Only the federal government may create criminal law. The provinces have been giving the opportunity to set up the courts with jurisdiction, the criminal law itself is a federal jurisdiction. It is standard across the country in provinces and territories. It is applicable everywhere. Uniformity in the law. In the U.S, it is a state jurisdiction, 50 different criminal codes, vary from state to state. Ex: when Kennedy was assonated in the states, there was no criminal law, so the federal law stepped in. Evolution of freedom of expression in Canadian Constitutional Law: Powers of Provincial Legislatures: Section 92 of British north American act and it is now Canadian act In 1867: In each province the legislature may exclusively make laws in relation to matters within the classes of subject next hereinafter enumerated….ex: education. Different educational systems in the provinces, no uniformity. Each province has their own jurisdiction. Section 13: property and civil rights in the province. Term civil rights doesn’t mean civil liberties. Civil rights means rights in civil law. Civil law is the exclusive jurisdiction of the provinces. Ex: different defamation acts in different provinces. Section 16: Generally all matters of a merely local or private nature in the province. The federal government has to deal with matters that deal with the whole country, banking, criminal law, trade, etc. You do not want it fragmented, so it applies equally across the country. The provinces deal with problems that are intra provincial, deal with matters that are only to that province, to that jurisdiction, property, civil law, etc. this division of power is what governed constitutional cases prior to 1982. The absence of the protection of civil liberties is part of the provincial or the national jurisdiction, there is nothing in section 91 or 92 that discusses freedom of expression, or speech. So constitutionally It didn’t exist. So when cases came before the court prior to 1982 that dealt with freedom of the press, censorship of the media, they were decided simply on the basis of jurisdiction. It was possible because parliament and the legislators were supreme, it was possible to pass legislation and “get away with it” That is no longer the case. Canadian Bill of Rights (1960) Civil liberties protected by statute You cannot have a democratic form of government without free expression. The protection was implied in directly. This concept that was articulated by a few supreme court judges. The creation of the implied bill of rights was an interesting legal rights, but was dismissed by other judges, not interested in reading things in the constitution that isn’t there. The status of freedom of expression, freedom of the press, was ambiguous. In 1960, the Diefenbaker Government (diefen baker was a civil libertarian) passed the Canadian bill of rights. For the first time, civil liberties, such as freedom of religion, press, expression were protected by statute, but not in the constitution. This was a transiti
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