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LWSO 203 - Constitutional Law - CCRF.docx

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University of Calgary
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 a) S. 52: Constitution is the supreme law of Canada b) S. 38: Amendment procedure c) Part I: Canadian Charter of Rights and Freedoms (1867) 2) Canadian Charter of Rights and Freedoms a) S. 1: Guarantee of rights subject to some limits 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) Pressing and substantial objective test: Is the objective of the government action of sufficient importance to warrant overriding a Charter right? (pressing and substantial) Eg. Possession of narcotics ii) Is the means by which the objective is met reasonable and proportionate Is the means rationally connected to the objective? Does it impair the right as little as possible? Do the negative effects of the violation outweigh the importance of the objectives? -is the objective fair and reasonable? -it must limit the right as little as possible -are the negative consequences worth it? Oakes: Possession with the purpose of trafficking -Thought the fact that he had to prove he was not possessing with the intent of trafficking -Double aspect doctrine: certain areas of law can be linked to provincial head of power and federal (e.g. environmental areas) paramountcy: federal government overpowers provincial legislation Secs. 91 & 92 Patriation of Constitution: 1851-Statute of Westminister Protection of Human Rights (and minority groups) within nations -civil rights movement in USA -1948 Declaration of The Rights of the Person -Canadian Bill of Rights -Quebec’s desire for Sovereignty (1960’s-1970’s FLQ Crisis) -Aboriginals, minority and Quebecois were looking for protection of rights Constitution: Pt.1 CCRF Pt.2 Aboriginal and Treaty Rights 3) Fundamental Freedoms – S. 2 of CCRF -core to our being and democracy -personal views define who people are -key to a functioning democracy -negative right: somebody doesn’t have a duty to provide to you (Sec. 2 are negative) -positive right: someone has a duty to provide to you a) Freedom of conscience and religion -Religious beliefs -Conscientious beliefs that aren’t religious -Right to openly declare beliefs and without fear of reprisal -The right to manifest those beliefs through worship, community worship with others - Freedom of thought, belief, expression, including freedom of the press -debate issues in public -freedom of the press -freedom to express it through any forms expression: an activity that conveys or attempts to convey meaning except acts or threats of violence - limits: hate speech, abortion clinic picketing, names of sexual assault victims, young offenders, child victims of crime, b) Peaceful assembly -assemble and protest in public -expressing their opinions in public that may disrupt the lives of others -violent protests are not okay c) Association 4) Democratic and Mobility Rights – S. 3-6 of CCRF a) Vote and be eligible to hold office b) Mobility within Canada and into Canada -every CITIZEN has these rights -you have the right to enter and leave Canada 5) Legal Rights – ss. 7-14 a) **S. 7: right to life liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice -applies to everyone (citizens, immigrants, refugees, visitors, corporations) -Life: health and wellbeing (negative right) except for you have to provide necessities of life to your dependants. -gov’t can’t restrict your ability to live your life -Liberty: choose for yourself how you are going to live your life (except jail) -Security of the person: the right to make decisions about our bodies, mental wellbeing, and what we do with our bodies. (abortion, Gloria Taylor physician assisted suicide) 2 levels of protection: 1) Right not to have these rights restricted except for principles of fundamental justice (due process, fair hearings, clear and generally applied laws) 2) Is it a justifiable limit according to the Oakes test? b) Principles of fundamental justice are both procedural and substantive i) Full disclosure in criminal matters ii) Right to make full answer and defence iii) Unbiased decision maker iv) Substantially – incorporated rule of law c) S. 8: right to be free from unreasonable search and seizure i) Warrant requirements ii) Fruit of the poisoned tree E.g. Police officers don’t have the right to enter your home without
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