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Lecture 4

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University of Toronto Mississauga
Nicole Myers

Lecture 4- Critical Legal Theory October 4, 2012 Contemporary Theory (continued) Critical Legal Theory  Began in American law schools 1970s  Radical, left-leaning, white male  Influenced by legal realism  Question presumption law is neutral and objective o Law is subjective and open to interpretation; can be inconsistent  Law is influenced o Influenced by moral ideas, politics, economy and community views o Argue law is made in interest of powerful people and is made by powerful people  Critical of law and legal education o Argue that law schools only teach to think like lawyers; didn’t challenge them to be critical of the law o Trained to accept status quo and work in the current system  3 dominant critiques: o Neutrality –questioning that law is not neutral and it is made in interest of certain people  People making these are also not neutral- have their experiences and that influences how they interpret the law o Abstraction- when applying law, exclude all social context that someone comes from  Divorced of context  Did you or not commit the crime? Nothing else is of any relevance  Argue that it is impossible to treat people fairly when the crime is taken out of context  Ie. youth charged for drug trafficking- ignore history of abuse in the past, what got them in this offending behaviour o Individual rights  All people are equal before the law and critical theorists don’t believe this  Reject doctrine of rights o Charter supposed to protect rights of minority groups but Charter is usually used by the powerful people in society  Legal system is repressive  Larger structural change o Reject idea of working within legal system o Believe that larger societal structural forces that are in place to evoke change Critical Race Theory  Mid 1980s  Alienated from existing legal discourse  Challenged objectivity of laws that oppress minorities  Challenge law and generate piecemeal change o Work within the law  Decentralize decision making  Rights discourse as essential  Move beyond rights analysis  Rejection of ;colour blind; approach to law o Ignores the fact that blacks and whites are not similarly treated o Differential experiences around practices o i.e. segregation laws were dismissed but cultural, social and economic factors still used to subordinate blacks  law written in such a way that everyone will have equal opportunity o putting race at the centre of the analysis o how race influences experiences people have with law  Experiences of oppression at centre  Duality of law  Racism as inherent part of society o Racism embedded in the system – slow incremental changes o Try to alleviate the worst effects  Way law and legal intuitions work to support system of progression and inequality o How these institutions promote inequality o Not looking individual level racism, looking at systematic racism o racism embedded in our language, social institutions and in our law 1982 Canadian Charter of Rights and Freedoms  entrenched in our Constitution  guarantees fundamental rights and freedoms  rights in court, rights in detention  freedom of speech, religion, assembly, expression, mobility Introduction  defines what every Canadian citizen is guaranteed to  idea that we need to protect individuals from the powers of the state o **does not protect you against private matters** (Human Rights Act)  controversial in terms of shifting power from legislature (writes laws) to judiciary (make sure law complies to charter)  all federal and provincial legislation subject to charter  redefined how we advance our rights o how our rights talked about? o How has the charter had an impact on how we talk about rights? How courts make decisions?  any law that breaches charter is struck down Section 1  ‘reasonable limits clause’  How government can override rights o Not absolute; government has power to deny rights  Guarantees rights and freedoms set out in subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society  How rights can be superseded  Infringement is ‘reasonable’ limit o i.e. prohibiting hate speech is reasonable limit on freedom of expression  Oakes test o An objective related to concerns which are pressing and substantial in a free and democratic society o Proportionality test- That the means chosen are reasonable and demonstrably justified  Reasonable limits on someone’s rights and is it justifiable  Rational connection between the law and its objectives  Must infringe on rights as minimally as possible  i.e. allows some criminal laws to be upheld – anti-terrorist legislation (to prevent terrorist activity, we can infringe on people’s rights) Section 2 –Fundamental Freedoms  since 1982 have constitutional protection  everyone has the following fundamental freedoms: o freedom of conscience and religious o freedom of thought, belief, opinion, and expression, including freedom of press and other media of communication o freedom of peaceful assembly (right to protest) o freedom of association  basic forms of individual liberty Section 3-5: Voting and Electoral Representation Section 6: Section 7- Legal Rights  everyone has right to life, liberty and security of person and right now to be deprived thereof except in accordance with principles of fundamental justice  R.v. Morgentaler- challenged State’s control over abortion o Ruled that access to abortion contrary to section 7 o Unjustifiable loss of life, liberty and security of person  R.v. Hebert o Accused exorcising right to retain counsel and not to give any statements o Accused put in jail and undercover police officer strikes up conversation with accused and Hebert makes a statement against him o Supreme court agreed that the statement was not admissible but the accused’s rights were breached (constitutional right to remain silent) Section 8-14 Legal Right of Accused  8: right to be secure against unreasonable search or seizure  9: right not to be arbitrarily detained or imprisoned  10: right on arrest/detention: o To be informed promptly of reasons thereof o To retain and instruct counsel without delay and to be informed of that right o Have validity of detention determined by way of habeas corpus and to be released if the detention if it is not lawful  Brought before justice within 24 of arrest and justice confirms whether detention is necessary  11: proceedings in criminal and penal matters o 11(b)- right to be tried within a reasonable
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