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SOURCES OF LAW I PRECEDENT AND STATUTES.docx

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Department
Law
Course
LAWS 1000
Professor
Steve Tasson
Semester
Fall

Description
SOURCES OF LAW I PRECEDENT AND STATUTES, INTERPRETATION AND CONFUSION Week 7 (OCTOBER 25 /2012)H The Charter •“Entrenched” •Major shift in powers from leg. to judiciary (Change in Canada‟s “legal culture”- Russell (more nxt wk too!) •Increasing “litigiousness” of Canadians (link to Christie?) •Less deference to authority (increasing “liberal values”- think Mill!). Less trust in gov‟t, more trust in judiciary as “guardians of rights” (WHY? What about post-911 “fear culture” (G20 ) •PRINCIPAL OF JUDICIAL REVIEW (expanding) •Less “political” and more “trustworthy” •Dominance of the Common Law system means even more role for judges (and dominance of legal History of the Charter •Bill of Rights (1960) •In part a response to UNDHR (1948) •NOT entrenched •Only applied to Fed leg and reg •First signs of the Parliamentary Supremacy vs. Judicial “Activism” debate (more to come) •Application of the BofR was “patchy” and inconsistent (eg. Drybones (1970) & Lavell (1973) cases- equality and the Indian Act) Charter Test – Const. Supremacy • Shift from “Parliamentary Sov” (Brit foundations) • All laws must be “consistent” w/rights laid out in Charter • Legislation can be “struck down”/rendered of no force or effect if it conflicts • What rights are guaranteed? • Issue: many laws conflict in some way! Rights are broad but also never absolute! • Laws CAN override constitutional guaranteed rights if it can meet the test set out in R v. Oakes • e.g. R. v. Butler (last wk), Insite (this wk – discretion must be used with notice paid to sect. 7 of Charter) ***If you feel like your rights have been violated you could bring a Charter challenge -Parliament is sovereign -When parliament passes legislation your rights have to be guaranteed, if not it could be struck down by a court -All rights must be consistent with the rights laid out in the charter, if not they can be struck down ex: Butler  made a claim laws against obscenity went against is freedom of expression and therefore should be struck down and had the court agreed with him we would no longer have an obscenity law -Section 2 (exam) -Section 7 – life, liberty of the person (exam) -Section 11- around legal rights -section 15- discrimination (exam) -Most laws passed conflict with rights in some way -Laws can be overwritten by your rights, but your rights can be overwritten if for a good reason ex: Butler The “Oakes test” • Question 1: Is there a rights violation? • Question 2: Can these violations be “demonstrably justified in a free and democratic society”? (Section 1 of the charter sometimes referred to as section 1 test). • OAKES • Part 1: The objective must be of “sufficient importance” to override the protected right (“Pressing” and “substantial”) • Part 2: The “means” chosen are “reasonable and demonstrably justified”. To do this they must meet: • Proportionality test (Dickson, J.) A. Rational connection between leg means and ends (≠arbitrary) B. Impair the right as little as possible C. Proportionality between measures and objectives (more severe the limitation on rights the more crit. the objective must be!) ***Section 12 – cannot be subjected to cruel and unusual punishment Charter Test – Const. Supremacy • Shift from “Parliamentary Sov” (Brit foundations) • All laws must be “consistent” w/rights laid out in Charter • Legislation can be “struck down”/rendered of no force or effect if it conflicts • What rights are guaranteed? • Issue: many laws conflict in some way! Rights are broad but also never absolute! • Laws CAN override constitutional guaranteed rights if it can meet the test set out in R v. Oakes • e.g. R. v. Butler (last wk), Insite (this wk – discretion must be used with notice paid to sect. 7 of Charter) The “Oakes test” • Question 1: Is there a rights violation? • Question 2: Can these violations be “demonstrably justified in a free and democratic society”? • OAKES • Part 1: The objective must be of “sufficient importance” to override the protected right (“Pressing” and “substantial”) • Part 2: The “means” chosen are “reasonable and demonstrably justified”. To do this they must meet: • Proportionality test (Dickson, J.) A. Rational connection between leg means and ends (≠arbitrary) B. Impair the right as little as possible C. Proportionality between measures and objectives (more severe the limitation on rights the more crit. the objective must be!) R. v. Oakes (1986) • Accused (Oakes) argued “reverse onus” to prove he was NOT intending to traffic was violation of his Charter rights (s. 11- presumption of innocence and fair trial) • Court agreed- prohibiting narcotics was “sufficiently important” but failed the “proportionality test” as there was no “rational connection” between the “fact of possession and “presumed fact” of possession for purposes of trafficking ***could go to jail for seven years for trafficking in this time period -stated that his rights were being violated (section 7 and 11). -Forces them to be careful on infringing people‟s rights Constitutional Law Today •Division of Powers •Charter Challenges –Sec. 1 vs Sec. 33 (Notwithstanding) •Constitutional law less procedural and more substantive (except. Amend. Formula) – est. legal principles •Clear link to Canadian Identity •Doctrine of Progressive Interpretation – read in soc. context (exam!!!!!!) -Was how the constitution was suppose to be read (in a progressive way) •Constitution as “Living Tree” – Edwards/ “Persons Case” •“The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits” (Lord Sankey) ***Charter is not interpreted same way in which other legislations interpret it; it is suppose to be read in the context of society today; -Idea that the constitution is a living document and interested in how it applies now (changes how it grows). THIS WEEK: Historical sources of Can Law? •Historical development •3 founding laws •European law does not enter a legal vacuum •Present-day dominance of common law (Brit. Foundations) a product of “politics of conquest” i.e. not by accident •2 stages of “reception” •Informal reception (legal plurality) •Formal reception (Institutionalization) •International Law – more influence today – next term •Trad. State- -Citizen ***Common Law, is more or less politics of conquest (that is why we have it) -2 stages of reception -Legal pluralism (French law overlapping aboriginal law overlapping English law)? Aboriginal Law(s) •Plurality of “highly complex” legal systems prior to colonization. Clear rules on property, hunting, relationship, etc. •First discounted by French (ref. civil law. Not recog. as law) •Champlain: “They are for the most part a people that has no law” Peoples less strateg. important •Early treaties concluded to secure critical support of First Nations •Largely abandoned in pursuit of assimilation policies – •reserve system •Band councils with limited powers (replace existing structures) •Classification system (“status” vs non-status) ***When the French first arrived here, they do not consider that there is any law at all (believe that they were lawless people, because they did not write anything done, but the French did) early on there was a shifting overlap between colonial and aboriginal law around things, but as the English population increases aboriginal law becomes less recognized. ***European and aboriginals become less and less important -Once there is a critical mass where there is way more English than aboriginal move to the idea of a stimulation, this happens strictly in law in a variety of places but the most place is the INDIAN ACT. (horrible piece of legislation); sets up a system of trying to make aboriginal quote on quote Canadian AKA British -Aboriginal woman could not marry a white man, but an aboriginal man could marry a white woman. A legacy of broken promises •Royal Proclamation 1763 •Acknowledged Aboriginal right to the land - held “in trust” (more) •Indian Act 1876  simulation policies begin (horrible piece of legislation).--> different sets of rights and citizenship •Assimilation - segregation •Model for Apartheid state in S. Africa •Constitution 1982 recognizes treaty rights (s. 25 & 35- “sheilds”) provides recognition of treaty rights in the charter •Starting in Calder the Court recognized wide range of rights •s. 35 not subject to the “reasonable limits” (s. 1) clause of the Charter •Charlottetown Accord would have recognized self-government rights –many agree but what this looks like is the issue •V&N discuss some recent legal victories (political as well- residential schools apology „08) •Recent calls for recognition of ongoing influence of Aboriginal law (and legal traditions) – lawyer training ***Acknowledged Canada was the property of Aboriginals French “Civil Law” •Civil Law •Law result of abstract ideals and principles – historically indep. •Roman origins – law of citizens •Key Sources: Academics and Teachers •Systematized codes of law (Napoleonic Code (1804), Quebec C
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