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LS101 – Nov.14.doc

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Legal Studies
LS 101
Frances Chapman

LS101 – Nov.14 14/11/2007 21:08:00 ← ← THE CHARTER OF RIGHTS AND FREEDOMS ← ← History • Pg.42 of textbook – quote • IMPORTANT TERMS *rule of law, facts, issues, racial decidendi, supremacy of court, division of power Britain still doesn’t have a constitution – the principles were • assumed, but not written down o Division of power – federal vs. provincial • 1982 – huge date in constitutional law o Canada wanted to sever some of their ties with Britain and allowing Canadians to make our own changes to the constitution – maintained the Queen’s status though • Rights revolution through the 1960’s made Canadians realize that they needed some sort of documentation of these assumed principals that were in the Bill of Rights • New support for an activist court at this time o Judges that are appointed and given the power or should the power be kept in the political realm • Tremendous support for a constitution by the 80’s – federal gov’t heard testimony from thousands of people and groups (lots of input) o Canadians themselves were given a direct stake in this ← Charter of Rights and Freedoms • Scope o Governs relationships between the government and citizens – does not apply between citizens (human rights applies in person-to-person situations) o Makes the gov’t accountable for their actions o However, can also apply to some interpersonal relationships where the govt vs. citizen rship is difficult to see e.g. marriage • Limitations o Government interactions ← Impact on the Court • For a long time, statute law trumped common law – however, with the Charter, a lot of power is returned to the courts • Section 52 (constitutional law) – “constitution is the supreme law of Canada and any law that is inconsistent, to the extent of the inconsistency, of no force or effect” ← Important Sections • Section 1 – Charter guarantees rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” o ‘reasonable limits’ – limit rights to some people o Charter rights are NOT absolute o Oakes test – possession of a prohibited drug – the onus shifts to the defendant to show that they were not going to traffic the drug (reverse onus – not innocent until proven guilty – must prove that you’re innocent)  Presumption of innocence  Step 1 – are you infringing the Charter for something important?  Step 2 – are the means used reasonable?  Has to accomplish only what is stated – trying to prevent drug trafficking (that’s it)  No further than necessary  Proportionate effect – it is not worse than the original problem • Section 33 – Notwithstanding clause – “Parliament or the legislature of the province may expressly declare in an Act of Parliament or legislature as the case may be, that the Act or a provision thereof, shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of the Charter.” o A little ‘escape patch’ for fundamental freedoms, legal rights and equality rights o Fundamental freedoms, legal rights and equality rights – the gov’t can override these rights o Only democratic rights, mobility rights, language rights and minority language education rights etc. cannot be touched by legislature  Used in a Quebec case where they refused to have bilingual signs because they wanted all their signs in French only o Sunset clause – S33(3) – sentences must be revisited every 5 years to see if it still reflects the wants of society • Section 2 – fundamental freedoms o Religious rights (not just an organized religion but also spiritual rights), freedom of thought, belief and opinion (includes freedom of the press), freedom of peaceful assembly (Myanmar – has been outlawed there and monks have been protesting and setting themselves on fire) and freedom of association
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