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LWSO 203 Lecture Notes - Section 33 Of The Canadian Charter Of Rights And Freedoms, Jury Trial, Parliamentary Sovereignty

Law and Society
Course Code
LWSO 203
Marywyatt Sindlinger

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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
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

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the provincial government bodies agreeing and represent 50% of the
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
3) Fundamental Freedoms S. 2 of CCRF
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