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LAWS 2502 Jan 22, 2014.docx

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Carleton University
LAWS 2502
Stacy Douglas

Review What is judicial review? Example of a Charter challenge: Singh v. Canada (Minister of Employment and Immigration), [1985] How to read a case well Referencing 1. What are the Classes of rights set out in the charter? • Mobility, equality, fundamental, language , democratic and legal rights 1. What are some of the justifications for s. 33? • Allow the provinces to bypass the charter for some things if they are deemed unconstitutional o Has to be renewed every 5 years o Only applies to certain parts of the charter • Foster provincial supremacy and the federal government o Forces legislation and law on provinces o If something happens in Ottawa at the Federal level o But if one province says they do not agree with it, they can use s. 33 and opt out if they put it in law and renew it every 5 years o Allows provinces to retain autonomy o Has sufficient safeguards o Ensures the continued rule of Parliament o Section 33 was used for Bill 101 when it says that all signs must be in french on signs o Only applies to s. 7-15 and s. 2 1. What section of the Charter claims that rights can be infringed under certain conditions? • S1. guaranteeing the rights and freedoms set out in it subject only to such reasonable limits prescribed by laws o We know it is reasonable because of the Oakes test o Requires a proportionality test o Has to be reasonable 1. What is the liberal idea of rule of law? • Equality for all • No one is above or below the law • Law applies equally to everyone • Large part of its history in English Civil War o John Locke: his concept of Rule of law and the idea of equality, the person and the individual o Concept of the individual has not always been around • AV Dicey is also part of this, he said 3 things, crime must be proven in a court of law • Crime must be proven in a court of law • No one is above the law • Judgements also make up the constitution o **pull in as many different things as possible** o Reference Re: Secession of Quebec [1998] 2 S.C.R. 217 i. Federalism ii. Democracy iii. Constitutionalism and the rule of law iv. Protection of minorities 1. What are the critiques of liberal idea of the rule of law • Before the majesty of the law, everyone is not entitled to sleep on the streets, beg, etc. o Sarcasm Lecture 3 Judicial Review? A bit of a misnomer, the concept of judicial review is 2 fold • A lot of scholars use it "the process by which judges review legislation through cases" or character challenge (In our case) • Or a strict legal sense "the legal process by which we challenge decisions made by govt officials in court" ) different from looking at appeal) o Process by which judges review different issues o Contitutional basis o Remedies o Justifications for judicial review • Holding governments into account o History of judicial review since Confederation o Introduction of the Charter gave judges and judicial review more power o s. 32 "charter applies to the parliament and government of Canada" • Reiterates that the Charter is about holding gov into account • Not something to be used between private individuals • Allows us to use the Charter against the government • Section 24 (1) of the Charter o If your rights have been infringed they can find a remedy if you win • Section 52 (1) of the Constitution Act o There is a way to get rid of a law if it is inconsistent, say it has "no force or effect" Remedies 1. Declaratory relief -----> Section 24(1) remedies o In this instance, there is a declaration of right, no implementation or direct enforcement • Proclamation that says: you are relieved of this thing that is infringing on your rights 1. Injunction o Make something stop infringing on you o Something else needs to happen 1. Damages 1. Remedies for legislation -----> Section 52 (1) remedies a. Striking down b. Severance and partial invalidity a. Reading down [1998, ren v. Alberta a. , when rights did not include sexual orientation] i. Interpretation of the legislation i. Judges decide there is a piece of law that is too wide i. Narrow by interp
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