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LWSO 203 - Constitutional Law - CCRF.docx

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Law and Society
LWSO 203
Marywyatt Sindlinger

Constitutional Act 1982 including the Canadian Charter of Rights and Freedoms 1) Constitution Act 1982 – 3 Key Functions  Set of written/unwritten principles that are the framework for our society  Senator and Harper government still look at the 1867 Constitution (abolish the senate – is this constitutionally allowed?). That constitution is still alive these days, and the government is trying to figure out how to deal with it.  S.91 – federal gets to make decisions, 92 – provinces get to make decisions  Case Study – Quebec and assisted suicide, who has the right to make that decision?  Double aspect/affect doctrine – whatever level government you are, if you can find a link to your heads of power, then you can legislate in that area. So some aspects of the law could link to the provincial and federal side. Sometimes therefore both levels of government can have a say in the matter (for example environment).  Pyth and Substance – true nature and purpose of your legislation. Intravieries – other level of government has already occupied the field and legislated in the area. If not, do they conflict? Paramouncy if they do – goes to the federal government.  Key things to remember: the two sections, senate, and house of commons Constitutional Evolution – read about it  WHY WE REPATRIATED THE CONSTITUTION (Bring it to Canada and make it Canadian)  1 key push for repatriation – Brits want to give up control and costs (Canada’s economy was not viable for the British empire,) We were costing them a lot and not giving much in return, in 1931 – Canada finally got control of its national affairs  Until the 1940s if you didn’t like a decision, you appealed it in England  2 key push for repatriation of the constitution – push for human rights and the protection of them. (united declaration for rights of the person and the bill of rights in 1960) The bill of rights didn’t bind the government, and it didn’t go far – it was just a paper of values.  3 – Quebec’s desire for sovereignty (1960s and early 1970) a) S. 52: Constitution is the supreme law of Canada  Any law that is inconsistent with the constitution is of no effect  Powers of government are limited by the terms of the constitution. Parliamentary supremacy is the opposite – powers of parliament aren’t limited – the parliament is supreme and can do whatever it wants.  You need someone to make sure the government is acting in its constitutional power – judiciary b) S. 38: Amendment procedure  A way to amend the constitution – a resolution of the house of commons agreeing to the amendment and they need resolutions from at least 2/3 of the provincial government bodies agreeing and represent 50% of the population. c) Part I: Canadian Charter of Rights and Freedoms  Preserve and protect human dignity  Part one of seven of the constitution act  Part two – Aboriginals, 3 – amendment procedures 2) Canadian Charter of Rights and Freedoms  Available online on in the textbook a) S. 1: Guarantee of rights subject to some limits. Guarantees the rights and freedoms, subject only to reasonable means (there are however 1 – reasonable limits and 2 – prescribed by law, 3 – the limit must be demonstrably justified; government must demonstrate the limit is justified and 4 – that limit must relate to our freedom and democracy, the limit must be necessary to further democracy/justice not for economic reasons). Ex. Freedom of expression can be limited by the criminal code that says hate speech is a crime. Key thing to remember: we will protect these rights, but they can be limited – we find out if they are reasonable through the Oakes test. b) Limits must be: i) Prescribed by law ii) Demonstrably justifiable iii) Reasonable in a free and democratic society c) Oakes test: the two-part legal test for determining if a government action limiting a right or freedom is saved or justified under s. 1 i) Is the objective of the government action of sufficient importance to warrant overriding a Charter right? (Pressing and substantial test) ii) Is the means by which the objective is met reasonable and proportionate Is the means rationally connected to the objective? (Will it work, or is it unfair and arbitrary? The means have to get you to the end.) Does it impair the right as little as possible? (Is there another way this objective can be achieved, and maintain more of your rights?) Do the negative effects of the violation outweigh the importance of the objectives? 3) Fundamental Freedoms – S. 2 of CCRF  Core to our being (define who we are as people)  The government is not allowed to infringe on this area on our lives  These are negative rights (nobody has a duty to provide it for you, you just have the right to pursue these activities); not positive rights a) Freedom of conscience and religion (religious and conscientious beliefs that aren’t religious – we can believe whatever we can about the world). We also have the right to declare our beliefs publicly without the fear of persecution. Also the right to attend religious ceremonies with others who share the same beliefs. b) Freedom of thought, belief, expression, including freedom of the press (if we can’t debate publicly, then that isn’t a democracy and we don’t know what’s happening in a democracy) Covers the form (ex. You can’t go within 70m. of an abortion clinic if you’re against it) and content of what you’re saying – it limits both as well as protects them. Press limits (names of youth offenders, children/victims of sexual assault, etc.) c) Peaceful assembly (came out from democratic rights surrounding unions) d) Association 4) Democratic and Mobility Rights – S. 3-6 of CCRF a) Vote and be eligible to hold office  The citizens of Canada have these rights  Vote in elections b) Mobility within Canada and into Canada  Doctors = if you want to be a doctor in a certain place, you hav
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