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Law 2101

INTRODUCTION TO LAW LECTURES Module: Introduction to the Legal System SEPTEMBER 15 LECTURE: Sources of Law, Common/Civil Law, Court System What Is Law? • The publicly prescribed rules that we must follow, failing which we may suffer some adverse consequence o A loose and incomplete definition o Distinguishes laws from customs Sources of Law Statutes • Broad and broadly applicable rules passed by legislatures (the government) • Highly diverse o Cover a wide range of topics • Can be enacted in anticipation of future events • Passed by both provincial and federal governments • E.g. Income Tax Act, Criminal Code, etc. Regulations (‘Subordinate Legislation’) • Detailed rules refining, applying, or further describing broad statutory statements • Passed by governor-in-council (essentially the government) o Specifically, passed by the cabinet • The government (cabinet) has the power to pass regulations without them being accepted by the Parliament • Regulations are the details filling in the ‘frame’ that is the statute o ‘Meat on the Bones’ Common Law or Case Law • ‘Rules’ laid down by the courts • Based on decisions resolving particular disputes • Each decision determines the law as it applies to that dispute and (in theory) helps determine the law applicable to other similar matters o Based on principle of ‘stare decisis’  The idea that similar cases should be decided alike o Court decisions guide the determination of future similar matters by courts • When faced with a legal issue, a lawyer will look at past decisions and try to figure out what the ‘law’ is • Statutes rarely can determine specific cases, common law is able to o Courts apply broad rules to particular applications • Common law is the most significant source of law in Canada Constitution • Supreme law of the country, to which all other laws must conform • Very broad statements of general principle that are given concrete application by the courts 1 • Both ‘Constitution Acts’ were drafted very broadly • The Charter of Rights contains a limiting clause o If there’s a good reason to ignore these rights, we are able to do so Etc. • E.g. International law o Treaties, trade agreements, etc. Lawmakers Federal Government • Can make laws that apply across the country • Authorized to make laws respecting matters assigned to it by the Constitution Act (1867) • Also technically responsible for government of the territories Provincial Governments • Laws only apply within the province • Authorized to make laws respecting matters assigned to it by the Constitution Act (1867) Municipal Governments • Laws only apply with the municipality • Authorized to make laws only respecting matters assigned to it by the provincial government • Zoning, bylaws, construction, etc. Aboriginal Governments (do not need to know much about this) Finding the Law • Statutes and regulations o Published in hard copy and also available online o For federal, o For provincial, o For municipal, • Case law o Published in hard copy and also available online o o Case Names • A case name is referred to as a ‘style of cause’ Civil Case • Smith v. Jones o SmithPlaintiff o JonesDefendant o The ‘v.’ in the name is pronounced ‘and’ 2  Case pronounced ‘Smith and Jones’ • PlaintiffPerson suing the other • DefendantDefending against the suit Criminal Case • R v. Jones o RThe Crown  Also known as ‘The Queen’ or ‘District Attorney’ o JonesAccused • This case would be pronounced ‘The Queen and Jones’ or ‘The Queen Against Jones’ Appeal • Smith v. Jones o SmithAppellant o JonesRespondent • AppellantThe individual appealing the decision o The appellant’s name always comes first in an appeal case • If this case were to appeal again, the style of cause would stay the same o In order for people to keep track of the rulings Divisions of Law • Substantive vs. Procedural o Substantive LawGenerally laws dictating what rights people have o Procedural LawLaws dictating how rights can be enforced • Public vs. Private o Public LawRules relating to the relationship between the individual and society or between governments o Private LawRules relating to the relationship between private individuals • Civil vs. Criminal o Civil LawPrivate lawsuit between individuals o Criminal LawProsecution by the government to enforce a public law • Civil law vs. Common Law o Civil LawCan also refer to the private law system operating in Quebec based on the Civil Code, which contains a fairly comprehensive statement of rules  In the rest of Canada, the private law system relies on past rulings o Common LawThe body of decisions rendered by court in particular matters (private and public)  Applies to private law outside of Quebec  Applies to public law matters everywhere across the country Court System • Hierarchical system in which the decisions of higher courts are binding on lower courts o Both in the matter at hand and for future cases o This is another aspect of ‘stare decisis’ 3  The principle that courts are required to follow the decisions of higher courts in the same jurisdiction • Court cases are almost always started in the lower (trial) courts o If appealed, they move up to higher courts • Different lower courts are assigned original jurisdictions over different matters • The highest court in Canada is the Supreme Court of Canada Adversarial System • Phillips vs. Ford Motor: o “Our mode of trial procedure is based upon the adversary system in which the contestants seek to establish through a relevant supporting evidence, before an impartial trier of facts, those events or happenings which form the bases of their allegations”  Not a scientific inquiry  Decision to be based on evidence adduced by parties who are presumed to be best able to advance their case  Judge is to be a neutral arbiter • In an inquisitorial mode, judge is much more engaged o Judge directs actions of police and prosecutor  Can ask questions, call witnesses, etc. o We don’t use this in Canada  Leave it up to 2 litigants SEPTEMBER 17 LECTURE: Basic Concepts, Finding the Law Interpreting the Law • The law, through various mechanisms, sets down various rules o But those rules, or their application to a future matter, are not always clear  E.g. What exactly does a term in a statute mean?  E.g. What relevance does a previous court decision have to a future dispute? • The rules must be interpreted • There are rules as to how the rules must be interpreted Statutory Interpretation • Statutes are often couched in general language • Courts must decide if facts of a particular case fit within general language o This involves:  Determining the meaning of statutory terms  Determining the applicability of statutory terms • No set formula for determining legislative meaning • ‘Rules’ of statutory interpretation are better understood as guidelines o Help you find an answer, but they don’t dictate an answer with precision • “Statutory interpretation is probably best described as a process that requires the exercise of judgment in balancing the ordinary meaning of words, the context of the entire statute and the purpose of the statute” o This is the Modern Rule of Interpretation 4 • The weight given to each of these elements in a particular case is not settled o Different courts give different weights to different factors • Judgment and argument are critical • A law does not dictate the outcome of a specific dispute, each law must be interpreted and applied differently o Highway Traffic ActDoes it cover inline skates? (still unresolved) Interpreting Case Law • Stare decisis: “To stand by decisions and not to disturb settled matters” o Courts must follow the decisions of higher courts in the same jurisdiction o Courts should decide like cases alike, i.e. follow precedent  Creates certainty in the law • Allows people to organize legal affairs based on a reasonable expectation of rights and obligations • Allows people to resolve disputes based on a reasoned assessment of probable result litigation • Ensures equity and fairness • But, in a legal system with multiple jurisdictions (both nationally and internationally) what is the relevance of decisions from non-binding courts? o And how do you know what a case has decided? • Courts are only bound to follow the decisions of courts that are higher in the same judicial hierarchy o I.e. Ontario court not bound by a British Columbia court’s decision • Decisions of other courts, however, can be persuasive, depending on a variety of factors o See LS-14 • Technically, a case is only binding authority for the legal principles on which the case was decided (the ‘ratio decidendi’) o Ratio decidendiDetails that are necessary to get from point A to B in the case  If all the ‘ratio decidendi’ were assembled in a document, it would only be about 2 pages out of an 100 page case • But it is the most important part • Other statements in the decision are ‘obiter dicta’ and thus not technically binding o Obiter dictaThings said ‘by the way’ • Distinguishing between the two (ratio decidendi and obiter dicta) is not always easy o Answer is not truly known until a subsequent court determines the answer o Courts don’t separate the two during a case • A court is only bound to follow precedent in a case if… o It deals with the same issue o The facts are sufficiently similar, with no new material facts • Supreme Court of Canada is not bound by anything, so it can technically change its mind on the principles of a past ruling o It does not like to do this, but if an alternative answer is more persuasive after reflection on the past, they will change the ruling 5 Module: The Canadian Constitution nd SEPTEMBER 22 LECTURE: Constitutionalism and the Rule of Law What Is Law? • What does law do? How do we use law? What are some of law’s functions? 1. Guides Behaviour • Restrains wrongdoing and punishes the wrongdoer • Takes the form of a command backed by a sanction of punishment • John AustinThought he solved the question of what law is o Came up with the ‘Command Theory of Law’  ‘Law is a command backed by a sanction or punishment  I.e. ‘Give me your iPod, or you will fail this course’ • Not exactly law, more of a threat  The Command Theory is too broad • It captures things that aren’t law  The Command Theory is also too narrow • There are some aspects of law that the Common Theory doesn’t identify o There are all kinds of law that are not commands  I.e. Enabling laws • Doesn’t tell you that you have to do something, but allows you to do something • I.e. Marriage laws, selling a car, a will, etc. • Prevents undesirable behaviour as well as securing desirable behaviour • Much criminal law is a duplicate of common morality o Though a large number are not • Coordination functionLaw can coordinate the actions of a large number of people o It is something we internalize and follow 2. Provides Facilities for Private Legal Arrangements • Wills, contracts, marriage 3. Provides for the Distribution of Goods and Services • Government collects taxesMoney goes to roads, garbage collection, etc. 4. Settling Disputes • Between private individuals o Contracts, contracts of employment, contracts of sale, torts, etc. Definition of Law • Aquinas“An ordinance of reason for the common good of a community promulgated by the person or body responsible for looking after the community” 6 o Ordinance of reasonIt is not arbitrary o For the common goodNo self-preference o Enforcer must possess actual authority Concepts of Political Morality Constitutionalism • States that the government should be limited in its power and that it should be limited by law • The political community should be governed by some basic rules o Should be stable and hard to change • Generates a legal system that is governed by a constitution • In Canada, a provincial government could not criminalize abortion o It has no authority over criminal law • Constitution Act of 1867Set out which governments could do what • 1982Canadian Charter of Rights and Freedoms o Limits the government’s authority vis-à-vis the citizen  Endows persons with rights against the government • Free speech, etc. Rule of Law • Expression we give to the legal system when it is in good working order • Often contrasted with what we call the ‘Rule of Men’ o Meant to indicate a decision-making model where the ruler just makes a decision and rules as they go along • Rule of LawLaw should be general, and set out in advance o AristotleA judge should be constrained by laws to ensure that personal preference does not come into play  They just execute rules made by others • AquinasLeave discretion up to individual judges o AbilityDoubted whether you could find enough intelligent judges  Better to have a small number of smart people write the legislation, have others enforce it o EmotionDifficult for a judge not to be swayed by emotion • 21 century8 requirements in order for society to be functioning under law o The ‘Ideal Rule of Law’ The Ideal Rule of Law 1. Law must be prospective o Forward-looking, apply to future events, not past 2. Laws cannot be impossible to comply with 3. Rules must be promulgated (published) o People need access to the laws 4. Rules must be clear o If they’re not clear, people can’t be guided by them 5. Rules must be coherent with each other o Can’t contradict each other 7 6. Rules have to be stable o Can’t be constantly changing o People won’t be able to effectively plan their lives 7. Exercises of discretion must be guided by general, clear, and stable rules o Tells decision-maker what they can and cannot look into making their decision 8. People with authority to make and administer laws must be accountable th SEPTEMBER 24 LECTURE: What Is The Constitution of Canada? Rule of Law • Rule of law is a rule of political morality o A political principle • Roncarelli vs. Duplessis o Premier used his office to correct what he thought was a social problem  Jehovah’s witnesses were angering the Roman-Catholics by handing out flyers, etc. o Duplessis used the commercial law of a required sales license to arrest the witnesses handing out flyers o Duplessis revoked Roncarelli’s liquor license o Duplessis’ defense‘Legislation says that I have the discretion to cancel or renew any licenses as I see fit’  I simply used this discretion o Supreme Court RulingOne aspect of the rule of law is that there can be no such thing as complete discretion  When law gives someone discretion, the person is not entitled to exercise it arbitrarily • Can exercise discretion in good faith and for the purpose for which it was given  Court now has to figure out the purpose of license legislation • Exercise in discretion is not about controlling religious beliefs  Court ruled in favour of Roncarelli • Manitoba Languages Reference o Constitutional referenceInstead of proceeding ordinarily through the courts, the case goes straight to the Supreme Court o Manitoba legislation was supposed to be bilingual  Government never followed this, made rules in English only o Supreme Court of Canada that Manitoba’s laws were invalid but would be temporarily valid until everything was translated  Used concept of rule of law to suspend the order of invalidity Constitutional Law • Concerned with controlling the government, reviewing actions of the government o Focuses on the use of government power Purpose of Constitutional Law 1. Divides power between governments 8 o Assigns abilities to the different governments  Federal, provincial, and municipal o I.e. Federal government has the authority to make criminal law, but the provincial governments have authority to enforce criminal law  Enforcement may vary from province to province 2. Limitations on government power o Ultra vires‘Outside the jurisdiction of’  After the ‘Canada Act, 1982’, defendants could no longer used this as an argument against the crown • Charter of Rights & Freedoms, etc. 3. Asserting principles o Constitutions can have an important symbolic function  Some can signal that there has been a change (US, Iraq)  Some can reassure that not much will change (Canada) 4. Amendment o ‘Constitution Act, 1867’ never included any details about how to amend it  Was a British statute • If Canadians wanted to change it, they would have to ask Britain and then Britain would change it  Eventually, people grew tired of asking Britain to amend things o 2 main acts form the Constitution today  ‘Constitution Act 1867’ and ‘Canada Act, 1982’ 5. Separation of powers o Refers to assignment of responsibility within a certain government o Each branch of government has a different role  Legislative (Parliament)Assembly whose responsibility is to make laws • Supposed to make statutes, legislation, etc.  JudicialInterpret laws with respect to resolution of disputes • Take existing law, make a decision • Makes small and incremental changes to the law  ExecutiveEnforces the law (implementing function) • Carry out the law • Consists of Prime Minister, Cabinet, all the way down to the parking officers (all enforce the law) • Governor GeneralHead of executive • Lieutenant governorHead of provincial executive Multiple Sources of the Constitution 1. Written Text/Statutes o In Canada, we have several statutes o Most importantConstitution Acts of 1867 & 1982  Up until 1982, the first Constitution Act was called the British North America Act • Creates a union • Sections 91/92 are the most important 9 o 91What the federal government has jurisdiction over o 92What the provinces have jurisdiction over • Very incomplete document o Does not create the office of Prime Minister, Cabinet  Based on the UK Constitution, which is not written down anywhere • States in Section 9 that the Governor General has broad powers o Queen is formally in charge • Sections 9-16Constitution Act delegates the Queen’s powers to the Governor General o The G.G. really has little formal power in Canada 2. Convention o Rules that are usually not written down o Non-legal rules (not enforced by the courts) o By convention(treaty), the Queen will not exercise power over Canada o Another prominent convention is responsible government  Means that the Cabinet and individual ministers are responsible to the legislative assembly (House of Commons) • If they lose the confidence of the House, they must resign o This usually results in a general election o If a government breaches a convention(treaty), there is no legal consequence, but there are political consequences  Public and the House judge the government on this matter o Governor General has to consent to a passed bill  If she decided to withhold consent, the government would go to the Queen and essentially ask her to fire the G.G. 3. Case Law o The decisions of judges interpreting the constitutional text o Constitution Act, 1867Federal government has jurisdiction over trade and commerce, and the provincial government has jurisdiction over property  Judges need to flush this out and interpret it, because it could technically mean that they have jurisdiction over the same thing 4. Unwritten Constitutional Principles SEPTEMBER 29 LECTURE: Federalism What a Constitution Can Do 1. Separation of powers (legislative/executive/judicial) 2. Division of powers (province/nation) 3. Protection of civil liberties 4. Assert the principles of a nation • Can amend the constitution, but that is not a purpose of the constitution 10 Sources of Constitutional Law In Canada 1. Written texts o Most important is the Constitution Act of 1867 o Constitution Act of 1982  One of the important things in it is the amending formula  Contains a written definition of the Constitution of Canada • “The Constitution of Canada is the supreme law of Canada, and any law that’s inconsistent with the provisions of the constitution is of no force or effect” o Constitution is not simply one document, there are many of them 2. Case law o Statutes can be challenged on the charge that they are ‘ultra vires’ o Constitutional interpretation 3. Conventions o Unwritten, non-legal rules o They are understood as binding or obligatory to parties to which they apply  Applies to government officials 4. Unwritten constitutional principles o Lack a rule-based nature o I.e. Rule of Law o A principle doesn’t direct anyone to do anything o Still a developing area of provincial law  Comes from Supreme Court of Canada Aspects of the Constitution • Canada is a federation of provinces o Essential that separate provinces have separate jurisdictions from each other  Municipalities are not equal partners with the rest of governments in Canada Advantages of the Federal System • Protects and preserves local culture and economies o Quebec was concerned about language rights, civil law, education, etc. • Central government could better provide for common defense • Access to capital markets o Ability to borrow money is greater as a whole than as individual parts • National construction projects such as railroad, etc. would bring economic benefits Where is the Power in Canada Concentrated? • Powers in Constitution Act, 1867 point to a strong central government o Power of disallowance  When the provinces made laws, they could be disallowed by the Governor General within a year • The reverse doesn’t hold true (provinces disallowing federal laws) 11  This power has fallen into disuse • Not used since 1943 • There is a ‘convention’ against its use o Politically unusable o Power of appointment  Federal government has the ability to appoint lieutenant-governors • They are the heads of each province  Now is an unimportant power • Lieutenant-governors no longer have many meaningful responsibilities • Conventions have limited the power of this position o Power of declaration (‘declaratory power’)  Allows the federal government to take any power that the provinces have jurisdiction over and declare it to be within the federal jurisdiction • They can declare the power to be ‘in the national interest’ • Constitution Act, Section 92, Subsection 10 (C)  This power has hardly ever been used  Section 91Enumerates all the federal powers • Basket clause exists in favour of the federal government • POGG ClausePeace, order, and good government o Anything that hasn’t been given to the provinces falls under the jurisdiction of the federal government o Basket power of leftover stuff for the feds to exercise  The power of this clause depends on what is left out of Sections 91 & 92 • These have to be interpreted Sections 91 & 92 (will be on exam) Section 91 (Federal Powers) • Section 91 (2)In addition to the POGG clause, another power exists o Jurisdiction over the regulation of trade and commerce  Interpreted by courts as jurisdiction over only interprovincial trade and commerce and international trade and commerce • Section 91 (27)Largest source of federal jurisdiction o Jurisdiction over the criminal law o Not jurisdiction over the administration of criminal law, but this power has to do with the creation of criminal law o Doesn’t just include things in the Criminal Code  I.e. Allows the federal government jurisdiction over the sale of tobacco  Doesn’t just include violence, theft, and fraud • Also protecting public health, etc. • Provides federal government with jurisdiction over certain economic issues 12 o Currency, post office, weights and measures • Provides federal government with jurisdiction over the military Section 92 (Provincial Powers) • Section 92 (7)Establishes jurisdiction over hospitals • Section 92 (8)Jurisdiction over municipalities (can create and eliminate them) • Section 92 (13)Largest source of provincial jurisdiction o Power over property and civil rights  Extremely broad power  Property includes physical property, the use of land • Potentially an extraordinarily broad power • Everything you do is technically on land  Civil rights includes a person’s legal rights • Contracted rights (landlords, employment contracts, etc.), persons’ entitlements against the government (welfare, healthcare, etc.), etc. • Section 92 (14)Administration of justice, police forces, etc. Government Power • POGG power has become unimportant over the last 50 years o Not many things are still left out after the Canada Act 1982 • Our federation is one which is not particularly centralized o Provinces have significant powers OCTOBER 1 LECTURE: Federalism (cont.) • Judicial review of legislationRegulation is passed, and some party that doesn’t like the legislation could challenge the vires of the legislation o It could also be a government (either provincial or federal) challenging the legislation of another government o The court is being asked to strike down legislation  Section 52Any law that is inconsistent with the Constitution is void  Section 91Federal power (POGG) • Not that much left over • Gives the feds powers that require a national standard  Section 92Province’s power • Things that are local/regional (education, hospitals, etc.) • 92 (16)Jurisdiction over all matters of a purely local or private nature • Federal government has jurisdiction over banking o Easy to interpret • Some other heads of power are harder to interpret o ‘Property and civil rights’, ‘trade and commerce’ • Judges adopt a ‘presumption of constitutionality’ 13 o Judges assume that the legislation they are asked to strike down is constitutional  Presumption only applies to the Constitution Act 1867 • Doesn’t exist for Charter, Canada Act 1982 Methods to Determine Whether Legislation Falls Within Jurisdiction of Feds or Provinces 1. Pith and Substance Test • Pith‘True meaning’ • Test that the court uses to figure out what legislation is really about • 2 steps: 1. Characterizing the legislation in question  What is the statute really about? • Focus entirely on legislation • Don’t look at the Constitution Act 2. Interpreting the Constitution Act  Focused on the Constitution  Decide whether the legislation from Step 1 corresponds to some head of power under Section 91 or 92 • Most of the work takes place during the first step o I.e. Law preventing murder  CharacterizationPreventing harm/violence, ensuring safety  InterpretationGoes under ‘Criminal Law’ • Sometimes a statute will have more than one aspect to it o I.e. Regulation about First Nations fishing quota  Pith and SubstanceIs it about First Nations or fishing? • One is under federal jurisdiction, the other under provincial • Is it an attempt to manage the salmon population or an attempt to regulate the lives of First Nations people?  What is the most important issue that this legislation addresses? • In order to determine pith and substance, we can look at the purpose of legislation as well as its effect o Can determine purpose by reading the preamble to the legislation, but this doesn’t always work • Morgentaler Case o Nova Scotia enacts legislation stating that any medical services performed out of a hospital will not be funded  Stated purposeTo prohibit privatization to ensure the highest quality healthcare • It was clear that the real purpose was to prevent Morgentaler’s abortion clinic from opening 2. The Double-Aspect Doctrine • Possible for legislation to cover more than one matter o Potentially could come under the jurisdiction of multiple governments • I.e. Operation of a motor vehicle o Corresponds to more than one head of jurisdiction 14 o Vehicle collision can be properly regulated through legislation passed by the federal and provincial governments  Can come under federal jurisdiction under Criminal Law • It’s a crime to dangerously or recklessly operate a vehicle  Provinces can set standards for the operation of motor vehicles and rules for its operation • I.e. Tobacco regulation o Under the criminal law, the feds have the anti-tobacco strategy  Prohibits advertisements  Puts nasty images on cartons o Provinces have jurisdiction over ‘property’ • When there is a conflict, the federal legislation has authority 3. Paramountcy Doctrine • If legislations conflict, the federal one takes priority and the provincial legislation is inoperative o Inoperative provincial legislation can become effective again if the federal legislation is repealed • For this ‘conflict’ to take place, there must be an ‘expressed contradiction’ o It would be impossible to comply with both sets of legislation Module: The Canadian Charter of Rights & Freedoms th OCTOBER 6 LECTURE: The Charter – Application and Scope What is the Charter? • Part of the Constitution Act, 1982 o Has the status of ‘higher law’ o Relatively new addition that empowers the government to do things that they couldn’t do before  Can declare a law to be in no force or effect (strike down) if it contradicts the Charter • Part of the supreme law of Canada • Section 52Enjoys precedence over every other law in Canada o Doesn’t beat other aspects of the Constitution Section 52 • The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect • Adoption of the Charter is a significant step in ‘Americanizing’ Canadian law o A charter is foreign to all other British colonies What Does It Mean to Have a Charter Right? • Realm of personal freedom within which to act • Correlative duty of others not to interfere with the exercise of rights o These are the ‘negative ideas’ of the Charter • May require the state to take action to secure the benefit of the right 15 o I.e. Right to fair trialState must hire judges, potentially provide you with a lawyer, etc. What Rights Does the Charter Protect? • Civil and political rights o International Covenant of Civil & Political Rights  Forms basis of the Constitution o International Covenant of Economic, Social, and Cultural Rights  Has positive demands  Not included in the Charter • Mainly protecting negatively oriented rights o Limiting government power, stopping the government from doing things • Economic and social rights are not specifically protected • Most bills of rights in the world are largely negative in orientation Fundamental Freedoms • Religion, expression, assembly, etc. Democratic Rights • Election voting (only for citizens), how long Parliament may sit, etc. o Every citizen has these rights Mobility Rights • Citizens of Canada can enter and leave Canada freely o Non-citizens treated differently o Free to move between provinces Legal Rights • Stuff relating to criminal law • Section 8Freedom from unreasonable search and seizure • Section 11Right to be informed without delay about the nature of your offence, presumed innocent until proven guilty, etc. • Potential disputes result from interpretation of the Charter o I.e. ‘Right to a trial within a reasonable time’  What is a reasonable time? Equality Rights • Section 15 (1)Statement of what equality is o ‘Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical ability’ Official Language Rights Minority Education Rights Who Must Comply with the Charter? 16 • Section 24Remedies against the police • Section 27‘Charter shall be interpreted in a matter consistent with the preservation and enhancement of the multicultural heritage of Canadians’ • Section 32The Charter applies to Parliament and the government of Canada, and legislatures and governments of the provinces • Applies to legislatures and executive branches of the government, federally and provincially o The government doesn’t actually make the laws, the legislature does o The police are subject to the Charter (they are part of the executive branch) • Emanations of the state must comply o Boards, commissions, tribunals • Municipal governments must comply • The Charter is not designed to apply to everyone and everything • State actors, and emanations of the state o State can pass any law, but the Charter also applies to it • If there’s no law covering something, there’s no vacuum to be filled by the Charter • Not everything related to the state is a state actor o A control test determines state actors  I.e. A corporation made under the state is not bound by the Charter • Charter does not apply to private activity • Non-state actors carrying out state purposes may be bound by the Charter for those purposes o I.e. A private company that runs a prison for the government Who Is Not Bound By the Charter? • Private individuals • Corporations o Even though they are created by the state through legislative means Who ‘May’ Exercise Charter Rights • Private individuals • Citizens o I.e. Right to vote (Section 3) • Groups o I.e. Language rights (Section 16(1) and 23) • Corporations o Some, but not all rights  I.e. No freedom of religion, cannot be imprisoned, etc. Know For Exam • Broad familiarity with rights in the Charter • Positive versus negative rights • Who is bound by rights 17 • Who may claim protection under Charter rights th OCTOBER 8 LECTURE: Interpreting the Charter The Supremacy of the Constitution • Section 52 (1)“The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect” • Everyone has rights o Good people, murderers, etc. • Charter of Rights is not simply applied as a set of clear-cut and defined rules o Judges are not referees o Rules are defined, rights and freedoms are not o Rights and freedoms have to be given meaning, interpreted, and applied • Judges have interpretory discretion authority The Role of the Court – Chief Justice McLachlin • The court is the “guardian of the Constitution” • Courts must determine whether or not legislation is consistent with the Charter • In deciding Charter cases, courts must consider moral questions o Should the state provide a safe place for heroin injection, etc. Problems in Interpreting the Charter • Vagueness and generality of rights language • Initially an absence of precedents • Courts must make value judgments o It matters which judges are appointed to the Supreme Court  Each has their own set of values Why Constitutional Interpretation is Difficult • Precedent may be of less force, as society changes • Values may change over time Judges’ Duties • Judges must set aside personal values and make decisions based on impartial assessment • Judges must consider the evidence and the argument put before them • Judges should reflect the dominant views being expressed in society How Do Courts Interpret Rights? • Constitutions are fundamentally different from ordinary legislation o Broad, often vague language  I.e. ‘A reasonable time period’ o Difficult to amend  Constitution was designed to be nearly impossible to amend o Designed to endure • Constitution tries to be short 18 o Impossible to write out what all the freedoms and rights actually cover Progressive Interpretation • OrthodoxPosition the courts have adopted • The Constitution is a ‘living tree’ capable of growth and expansion within its natural limits o Can adapt to address situations not contemplated when it was written • Original understanding of those who drafted it, or its original meaning, is not determinative o This is unlike the US Generous Interpretation • The Charter is a limit on state power o Therefore, generous or broad interpretations of the scope of the protected rights and freedoms limit legislative power • The more generous the interpretation, the more the right will protect conduct that may be considered unworthy of constitutional protection Purposive Interpretation • Limits the extent of the generosity of interpretation by tying it to the purpose of the right • Purpose is a judicial construct o The court imbues the right with the purpose it considers appropriate • Once a purposive interpretation is given, it is easier to interpret reasonable limits on rights • Section 1Most important provision in the Charter o “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” OCTOBER 13 LECTURE: Reasonable Limits on Rights, Notwithstanding Clause • Interpretation is not scientific o It is up to reasonable people to decide and disagree upon • Judges don’t just follow precedent when interpreting Constitutional law o Precedent probably has the least force in interpreting Constitutional law  The Charter should be a ‘living tree’ • Able to adapt and change with society • Police cannot authorize a person not bound by the Charter to commit a charter breach and then benefit from the breach o Police are not allowed to breach the Charter • Section 1Most important provision in the Charter o “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”  Government must justify limits placed on rights 19 • ‘In a free and democratic society, this is a reasonable and justifiable limit on a right’  If the court says the limit is unjustified, we have a Charter breach • Therefore, the law is invalid The Purpose of Section 1 • Guarantees rights • Allows limitations on rights • Establishes a standard of justification for limits on rights o Not very clear standard o Up for interpretation Limits Must Be Prescribed By Law • Limits on Charter rights must be authorized by law o Authorization may come from legislation, regulation, or common law • Must be sufficiently specific o Must not be too vague o Must be ascertainable/intelligent Demonstrable Justification • Onus is on the party seeking to limit rights o Almost always the state • Civil standard proof o Balance of probabilities  Does not need to be proven justifiable ‘beyond a reasonable doubt’, can simply by 51% likely vs. 49% unlikely • Court does this because you cant prove something is justified using scientific evidence The Oakes Test – Legislative Objective • Test used by the court • Court‘Legislation must have an important purpose in order to be able to limit a right’ o Purpose must be ‘pressing and substantial’  Law must be passed for a good reason (must be important) The Oakes Test – Rationality and Proportionality • The law limiting the right is justified if these 3 ideas are all met: 1. Rational Connection • Legislation must be rationally connected to its objective o Cannot be arbitrary, unfair, or based on irrational considerations • Not usually difficult to meet 2. Minimal Impairment • The linchpin of the test • Legislation must impair rights as little as possible 20 • It is always possible to conceive of lesser limitation o So legislation need only to impair rights as little as reasonably possible  Leaves choice to the legislature 4. Overall Proportionality • There should be overall proportionality between the effect of the limitation and the objective in pursuit of which it is imposed o The greater limit on a right, the more important the objective of the legislation must be in order for the limit to be justified • Difficult part of the test to understand o Not usually determinative of outcome The Notwithstanding Clause • Allows the government to ‘get around’ a court ruling • Can only ‘opt out’ of the Charter 5 years at a time • Section 33 o (1)Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7-15 of this Charter o (2)Notwithstanding subsection (1), section 15 shall not have effect until three years after this comes into force Why A Notwithstanding Clause? • Parliamentary sovereignty • Key to the agreement to pass the Charter in the first place o Provinces needed this power in order to agree Limits on the Notwithstanding Clause • Does not apply to all rights • Cannot be applied retrospectively o Ford case establishes this • Applies only for 5 years o Subject to renewal Relevance of the Notwithstanding Clause • Never used at the federal level • Never used in Ontario • Used mainly in Quebec Impact of the Notwithstanding Clause • May influence the way courts decide a case and interpret the Charter • Our Charter is ‘supreme law’ o Despite the notwithstanding clause, the Charter remains supreme and won’t be overridden in any province  With the exception of Quebec 21 OCTOBER 15 LECTURE: Enforcing the Charter: Rights & Remedies • If a limit of a right is justified, there is no Charter breach Who Uses the Charter? • Political interest groups (to advance their view in the courts) o LEAF o Civil liberties groups o Gay rights groups • Strategic litigation campaigns to achieve social reform through the Charter challenges and intervention in Charter cases Charter Challenges • Relaxation of ‘standing requirements’ o No longer need to have a direct connection with the case • Bringing a lawsuit allows control of agenda o Expense o Time consuming Intervention in Charter Proceedings • Allows an issue to be raised before the Court without the need for an actual case • Less expensive than a suit • Intervener does not control the case • Participation may be limited by the Court Charter Remedies • Section 52 RemediesInvalidating legislation o ‘No force or effect to the extent of the inconsistency’ • Interpretive remedies • Section 24 Remedies o Excluding evidence obtained illegally, suing public authorities for damages, legal redress, etc. Partial Invalidity – Severance • If whole statute is not inconsistent, sever the offending provision or provisions • Court eliminates the words that give rise to the Charter inconsistency, leaving the rest of the statute intact • Appropriate where severance is consistent with the legislative purpose, and has minimal fiscal consequences Interpretive Remedies – Schachter • Flow from Section 52 • Primary remedy where legislation is concerned o Section 24(1) not available in addition • Options include: o Declaration of partial invalidity and severance 22 o Reading-downGiving law a narrower interpretation than the words permit in order to fix the inconsistency o Reading-inEuphemism for ‘changing the law’  Makes the law more specific  Enables the court to essentially ‘add’ something to the law o Suspension of invalidity Reading-Down • Available if legislation is potentially overbroad o I.e. Covers too much, and part of what is covered infringes the Charter • Court interprets legislation in a way that avoids Charter inconsistency Reading-in • Appropriate where legislation is under-conclusive o I.e. Omits something that ought to be included • E.g. Benefit provisions that should apply to a greater class of persons given the equality right • Court ‘reads-in’ words that extend the application of the legislation to make it consistent with the Charter Reading-in Criteria • Justified only in the clearest of cases if: o The legislative objective is obvious o It would not be an unacceptable intrusion into the legislature’s role o It would not intrude on substantial budgetary decisions Suspension of Invalidity • Court can delay the effective date of its order for time limited periods o Usually 6 – 18 months • Allows legislature to respond and fix unconstitutionality o Leaving the law in place in the meanwhile • Avoids chaos and preserves rule of law Section 24 (1) • 24 (1)“Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such a remedy as the court considers appropriate and just in the circumstances” Section 24 Remedies • DeclarationCourt statement that the actions of the police violated the Charter • DamagesA person receives money from authorities due to a violation of their Charter rights o Not often given because it is hard to put a price on a rights violation • InjunctionOrder that something has to stop o ‘Stop doing this, don’t do it again’ Declarations 23 • States what the relevant constitutional obligation is and whether conduct is consistent with it • Gives guidance for authorities as to future permissible conduct Damages • Monetary compensation • Not well developed, few examples • Problematic because its difficult to place a value on rights • Injury caused by breach of Charter may be intangible Injunctions • Order that a party do or not do something • Not favoured as a Charter remedy because it is not a final order, and may require supervision • Relatively few examples Section 24 (2) • 24 (2)“Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” th OCTOBER 20 LECTURE: Freedom of Expression • Section 2 of the CharterEveryone has the following fundamental freedoms: o (b)Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication Irwin Toy v. Quebec • Legislation prohibits advertising aimed at children under the age of 13 o Does the legislation infringe the freedom of expression? o If there is an infringement, can it be justified as a reasonable limit of the freedom? • Irwin Toy is seeking a declaration in accordance with Section 52 of the Charter • Freedom of expression is more than just words o Activities, actions, etc. o Things that convey or attempt to convey meaning o Violence is not protected under the freedom of expression • The freedom of expression may be limited by purpose or effect • How can the freedom of expression be infringed? o Can be by purpose or effect Purpose of Limiting Expression • Purpose of restricting the content of expression by singling out and prohibiting certain meanings infringes the freedom • Purpose of restricting a form of expression to control access to the meaning or to control the ability to convey that meaning also infringes the freedom 24 Effects of Limiting Expression • Control over the physical consequences of activity regardless of meaning being conveyed is not a purpose of limiting freedom of expression o But may have the effect of limiting the freedom if it interferes with the values underlying the freedom Values Underlying Freedom of Expression • Seeking and attaining truth • Participation in social and political decision-making • Self-fulfillment and human flourishing Irwin Toy • Court agrees that commercial advertising is protected by the right because it conveys meaning and has expressive content o But Court holds that prohibition on advertising aimed at children is a reasonable limit on the right  3 – 2 outcome in the case  Therefore, the law against the advertising is constitutional R. v. Keegstra • ArgumentHate speech is protected by the freedom of expression o It conveys meaning, and is not violent per se • Applying the Oakes test, the criminalization of hate speech is a reasonable limit on the freedom of expression o Alberta CourtRuled it was unconstitutional o Supreme CourtRuled it was constitutional • Apply Oakes test o Regulation of hate speech is a pressing and substantial objective in light of the harm caused by racism Oakes Test – Step 1 • Is it rational to try to prevent the harm caused by racism by suppressing hate speech? o Yes Oakes Test – Step 2 • The freedom of expression is minimally impaired, since only the most extreme forms of expression are covered, and there are various safeguards in the law o Not unduly vague o Hatred is a high requirement to prove o Must be willful o Private conversations excepted o Truth o Good faith Oakes Test – Step 3 • There is overall proportionality given the nature of the problem 25 o This type of expression is far removed from the core freedom of expression values o The restriction is not overly serious o Therefore, the legislation is constitutional  4 – 3 outcome in the Court RJR MacDonald v. Canada • Legislation banning the advertising and promotion of tobacco does not constitute a reasonable limit to the right • Apply the Oakes test o The objective of reducing tobacco-associated health risks by reducing advertising-related consumption is of sufficient importance to justify limiting the right Oakes Test – Step 1 • There is a rational connection between advertising and consumption o Not a scientific connection Oakes Test – Step 2 • Legislation does not minimally impair the right o Less intrusive measures could have been taken, such as:  Partial ban  Lifestyle advertising ban  Prohibition of advertisements aimed at children, etc. rd • Legislation is unconstitutional, so there is no need to consider a 3 step of proportionality analysis o Outcome was 5 – 4 in the courts OCTOBER 22 LECTURE: Equality Section 15 (1) • 15 (1)Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability o Limits itself to people (individuals) and does not include corporations • Equality might mean the same treatment or differential treatment o Here you have to ask ‘what does equality mean?’ • All laws are going to treat people differently in some regard o Age restrictive (drinking), etc. • Differences in treatment aren’t necessarily ‘bad’ o Depends on the situation Andrews v. Law Society of British Columbia • AndrewsSection 15 (1) is not a general guarantee of equality • CourtEquality is an elusive and contestable concept • Not every distinction in treatment will violate the equality right • Court rejects formal equality in favour of substantive equality 26 o Formal EqualityEveryone treated the exact same  Procedural o Substantive EqualityPeople can be treated differently depending on the circumstance  Concerned with the outcome of the treatment • Focuses on discrimination component of Section 15 (1) rather than equality • Section 15 prevents discrimination on enumerated and analogous grounds o Enumerated GroundsRace, religion, sex, etc. (listed in Charter) o Analogous GroundsFundamentally like those grounds listed, but not listed grounds • Discrimination is "a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.” • Citizenship is not mentioned in Section 15 but it is analogous to the grounds listed o So, it is also a prohibited ground of discrimination • CourtCitizenship requirement violates Section 15 (1) and is not a reasonable limit under Section 1 (majority) ‘Law’ v. Canada • Synthesizes prior case law into a 3-part test: 1. Does the impugned law: a. Draw a formal distinction between the claimant and others on the basis of one or more personal characteristics? b. Or: Fail to take into account the claimant’s already disadvantaged position within society, thereby causing substantively differential treatment between claimant and others on the basis of one or more personal characteristics? If so, then… 2. Was the claimant subject to differential treatment on the basis of one of more of the enumerated or analogous grounds? If so, then… 3. Does the differential treatment discriminate in a substantive sense?  Is that difference in treatment what we think of as discrimination? • The purpose of the equality right is to prevent a violation of essential human dignity through imposition of disadvantage, stereotyping, or political or social prejudice o Human dignity concerns the manner in which a person legitimately feels when confronted with a particular law • Does the law treat him/her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law? • A variety of factors may be considered, including: o Pre-existing disadvantage, vulnerability, stereotype, or prejudice o Relationship between the ground of the claim and the nature of differential treatment 27 o Ameliorative purpose or effect of impugned law on the disadvantaged person/group o Nature and scope of the interest affected • A member of a more advantaged group is ‘clearly entitled’ to bring a case o Historical disadvantage need not be shown by a Section 15 (1) claimant • CourtThe distinction based on age does not undermine human dignity, and so it is not discriminatory o No need to consider Section 1 as a result R v. Kapp • Human dignity is confusing and difficult to apply as a legal test, and has proven to be a burden on equality claimants • The factors identified in ‘Law v. Canada’ relate to identifying things important in Andrews o The perpetuation of disadvantage and stereotyping as primary indicators of discrimination • ‘Law v. Canada’ does not impose a new and distinctive test, but instead confirms the commitment to substantive equality outlined in Andrews • Focus of 15 (1) is on preventing discrimination based on enumerated and analogous grounds that perpetuate group disadvantage or prejudice or impose disadvantage based on stereotype • 15 (2)Enables the government to combat discrimination with affirmative action o If 15 (2) criteria are met, it is unnecessary to do Section 15 (1) analysis  15 (2) and 15 (1) are confirmatory of each other • 15 (1) cannot be read to find a program aimed at combating discrimination to break equality right • A program does not violate the equality guarantee if the government can show: 1. The program has an ameliorative or remedial purpose 2. The program targets a disadvantaged group identified by enumerated and analogous grounds Modthe: The Criminal Code OCTOBER 26 LECTURE: Introduction/Actus Reus What Is A Crime? • An act or omission considered to be a wrong against society • Prosecuted by the state in criminal proceedings • Involves moral wrong • Reserved for the most serious harms in society Terminology • Civil cases brought by individuals o Smith v. Jones • Criminal cases brought in the name of the state o The Queen against Jones  Because the King/Queen is the head of state  Otherwise written as R. v. Jones 28 More Terminology • Prosecution, not an action • Prosecuted or charged, not sued • Civil o Plaintiff and defendant o Balance of probabilities  Must prove that one’s side of the argument is ‘probable’ in truth • Criminal o PlaintiffCrown or the prosecution o DefendantThe accused or the defendant o Victim, complainant o Beyond a reasonable doubt  The Crown must prove that the accused is guilty beyond a reasonable doubt  Presumption of innocence • Prosecution must prove the accused did it Sources of Criminal Law • Federal vs. provincial o Section 91 & 92 of the Constitution Act 1867  Federal government has the power to enact criminal law  Provinces have the power to administrate criminal law • Common law crimes abolished o Section 9 o Cannot be convicted of a crime if it is only criminal under English law  Must be a crime under Canadian law • All crimes statutory • Controlled Drugs and Substances Act • Criminal Code o Just a big, long statute Scope • Territorial • Age o Under 12Not an offence o 12 – 17Youth Criminal Justice Act  Names not made public  Penalties are much less severe o 18+Criminal Code • Time o No limitation period for indictable offences  It doesn’t matter how much time has gone by, you can still be prosecuted for a crime  There are two kinds of offences: • Indictable (‘felony’) offences 29 o More serious o E.g. Murder, assault, etc. • Summary (‘misdemeanor’) offences o Less serious o E.g. Dine and dash • Many offences are hybrid offences o If more serious, then they become an indictment o If less serious, become a summary o 6 months for summary offences  Between the time the offence takes place and the time you’re charged Analyzing a Crime • ARMED o ARActus Reus  Consists of the physical elements of the criminal offence o MEMens Rea  Mental element of criminal offence (guilty mind) o DDefences Actus Reus • Physical elements of the offence o ConductDoing something  Applying force to someone, etc. o CircumstancesOffence may require certain circumstances  E.g. Application of force has to be without consent of certain person o ConsequencesEnd result  E.g. MurderPerson is dead ‘Baking the Cake’ • Look at a recipe and check that you have all the necessary ingredients o RecipeStatute  Sets out what ingredients for a crime happen to be Extortion • 346. (1) Everyone commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person…to do anything or cause anything to be done Assault Offence • 265. (1) A person commits assault when: o (a) Without consent of another person, he applies force intentionally to that other person, directly or indirectly Causation 1. Factual cause‘But For’ Test 30 o Determine whether the act of the accused has brought about or caused the result o ‘But For’ X, Y would not have happened, then X caused Y  If something would have happened regardless, it fails the ‘But For’ test 2. Legal Cause a. Need not be the sole cause b. Has to be a significant contributing cause c. Thin skull rule  If you hit someone with a baseball bat and their skull fractured in a million places, you could not argue that the guy had a thin skull  Tough luck • Take your victim as you find him d. Novus Actos Interveniens  If a new act intervenes and breaks the chain of causation, that gets you off the hook • If you push someone off the tower but they are shot and killed on the way down, you don’t get charged Causation Problems • In each of the following, has A caused the death? 1. A gives V a fatal dose of arsenic. As V lies dying, B shoots V in the head and instantly kills her (no, B) 2. A hits V on the head and leaves V’s unconscious body: a. On the 401 wher
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