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Final Exam Review CRIM 135.doc

29 Pages

Course Code
CRIM 135
Graeme Bowbrick

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THE NATURE OF LAW 1. What is law?  Rules that government human conduct  Laws are rules, rules are not laws  Laws are rules that are made through a formal process for establishing and enforcing these laws  Formal processes include courts 2. Values: The foundation for laws (a) What are values?  Our general beliefs of right and wrong  What we value and what we don’t Where we get these values?  We get these values from our parents (major roles parents play)  Community leaders help shape our values (people we look to having a leadership role in a major or minor roles, such as media, politician, celebrities, teachers… etc.) (b) The role of values in the law/legal system  All laws based on values, all laws reflect on values  No such thing as a “value free” law Who’s values do they reflect? - Many laws reflect the value of the people (we’re the ones who turn and make the laws, we’re the one who choose and elect) o Such as people vote for government, government makes the law o However, government isn’t as popular, therefore do not reflect the broad population o Judges (how do judges apply those laws? Their own values influence how they apply and interpret the law o Legislators, politicians 3. The Major Theoretical/Philosophical Perspectives on the Law Philosophical base of where these values come from, why the world is this way, how is it should be different? - Major source: Religion (historically played a major role), a form of philosophy, ideologies (ex: communism, capitalism) (a) Positivist Perspective  Maintain that process is more important than substance  Using a proper process to make the law is more important than the moral content of the law  Separation between law and morality  Sometimes the law will reflect morally correct or morally wrong, but it is the law  As long the law went through the valid process, than it is the law o Although it might be unjust or invalid, it is a law o Made by the sovereign (king or queen, aka people through parliament)  Concerned of what the law is rather than what it ought to be  If we encourage and accept the law what it ought to be, we’re questioning the validity of the moral judgment  Leads to implication and discussion if the law should be obeyed, as long it is validly enacted, must be obeyed  Certainty& predictability = stability o If you know what the law is, you govern your life accordingly o If you don’t have a clear idea what the law is, then we don’t have a common view of what law is, ends up to chaos  Cares about morality of the law, care if the law is unjust o Deals with it by changes the law in a legal process o Lobby the bill to decriminalize it  Most widely held view (b) Natural Law Perspective  Insists on a clear link between law and morality  The unjust or immoral law is not valid = can disobey that law  Historically, it has a religious basis that conforms to God’s will 1 o Christian values  Can be based on ideology or some other based in the world, philosophical basis  If it doesn’t conform, don’t obey it  Problem: o Works in homogeneous society, doesn’t work on a pluralistic society such as Canada  Question what is correct, who’s moral is correct since it is such a big society  To solve this, go through the positivist perspective through the legal process  Irrelevant? o Reminds us to think about the morality and value of the law o And always be on the guard of the unjust of the law without questioning the law  Don’t object to most laws (most laws have roots in religion) o Only reject some laws (c) Legal Realist Perspective  Not much of a philosophy of law, not of how the law should be  Attempt to explain or predict the law  Argues that you can only really understand the law by understanding the context of how the law is made or how the law is applied, is all about understanding the overall context o The social, economical and political forces at work (Marco level) o Psychological makeup of law makers (Micro level)  You can understand the law by understanding the morality THE DIVISIONS OF LAW Positive law  international law and domestic law Domestic law  substantive and procedural Substantive  public and private Public  constitutional  criminal  administrative  taxation Procedural laws: law that governs legal processes - 2 types o Criminal procedure: sets out criminal justice process (when they’re arrested/detained, into trial, sentencing, appeal) o Civil procedure: everything else (suing someone etc) Substantive laws: Rights and responsibilities under the law Public law: involves a public interest (issues that broadly speaking, concerns society at large) Private law: involves a predominately private interest Public Law Constitutional law: constitution sets up framework for political/legal system (how democracy operates) - It also promotes/protects core values (freedom of expression, equality, right to free trial) - Public because we want a clearly defined system for our legal processes etc Criminal law: law which prohibits the most serious/damaging behaviour towards people and property - Give us a sense of physical security, and sense of security for our property (will be protected against others coming and taking/damaging it) - Fundamentally how does it work? Call the police, which is paid for by everyone through taxes (pay for crown prosecutors etc too) - With crime, everyone backs up the victim Administrative law: going to be the most relevant area of law to you (usually) - Regulates behaviour of government and its agencies (requires government to behave fairly towards citizens when it does anything in relation to them (citizens)), requires them to act within the law o Ex: pass all requirements for your N, go to ICBC and they say “no, I’m not giving it to you because I don’t like you” – can’t do that because of administrative law Taxation law: has to be a law authorizing each tax (income tax act, some sort of sales tax act) - Public interest is in all the things we get for our taxes Private Law Contract law: about agreements that are legally binding 2 - Exchange of value makes it legally binding (and a contract) o Ex: job: labor for money - Can only be entered into by people with legal capacity to enter the contract (19+, mental capacity) - Phones: have a contract with Rogers, give them money and loyalty for 3 years in return for a certain level of service and a discount on the phone. If you stop paying your bills, the rest of us don’t really care about your dispute with Rogers (private interest) Property law: gives legal recognition to our right to property (if you own it, the law recognizes your ownership of the property- if the law doesn’t do that, someone could claim your house as theirs) - 2 types of property o Real property: land and the buildings upon land  Land title registry system keeps track of title to land all over the province and ownership (formal regulation system) o Personal property: everything else (pen, laptop, clothes, car etc)  Present proof of ownership to judge- not as formal regulation  Possession = ownership unless someone can show greater proof of ownership Tort law: law of private wrongdoing (in contrast to public wrongs- more serious) - Most significant tort: negligence (car accidents) - Criminal laws focus on punishment, tort law focuses on compensation - Ex: If you take a gun and decide to show it off but accidentally hit someone  criminal negligence (really bad negligence) Public and private laws can overlap - OJ Simpson put on trial for murder, wife’s family put him on trial for wrongful death and won. (charged criminally and civilly, only won civil) - Drunk driving: serious vehicle damage and to driver (impaired driving and possibly impaired driving causing bodily harm, sued by other driver for tort of negligence, pay for repair for car and other person) o Criminal and tort law consequence Legislation Law made by elected representatives > laws made by judges Primary legislation: comes in form of statute - Power to make legislation comes from the constitution (starting point), most basic/fundamental law there is, where all legal power resides, flows from there o Allocates legislative power to legislatures (11 in Canada- 10 provincial legislatures and the federal legislature (parliament in Ottawa))  Can delegate powers to others o Divides according to jurisdiction o Provincial and federal o All 10 have the same power, exercised within their provinces o Federal: for the whole country - Criminal law, foreign affairs: federal legislative authority - Health care, education: provincial - Legislatures can make any law they want as long as it conforms to the constitution (only limit to their power) The political process: The Political and Legislative Process: A Brief Overview 1. The Political Process (a) Elections • Every 5 years max. (now 4 years in BC by law) • Candidates seek election to one of 87 seats in the Legislative Assembly (legislature) • There is one seat in the legislature for each of 87 electoral districts around the province • Almost all candidates run for office as part of a political party • To win, a candidate needs only to get more votes than any of the other candidates -- “first past the post” (not a majority of votes) (b) After the Election – Forming a Government 3 • The 87 winning candidates are sworn into office as Members of the Legislative Assembly (M.L.A.) • The Lieutenant-Governor looks at which group can work together as a majority … the Lieutenant Governor will then ask that group of MLA’s to form a government • All MLA’s that are not part of the government are members of the Opposition (c) After the Election – Forming a Cabinet (Executive Council) • The leader of the government is the Premier • Premier chooses some of the government MLA’s to form the cabinet or executive council (and the Premier can add or remove people from the cabinet at any time) • The members of the executive council are known as cabinet ministers [examples: Attorney General; Minister of Finance; Minister of Education; Minister of Health] • The cabinet only has power as long as a majority of MLA’s support it • The non-cabinet members of the government are known as the “backbench” 2. The Legislative Process (a) Before Entering the Legislature • Need for a new law or a change to a law identified • Research and consultation is done about what the new law or changed law should look like • Government lawyers draft (write) the proposed law – this is called a Bill (b) Entering the Legislature – 1st Reading • The Bill is introduced in the legislature by an MLA (almost always a cabinet minister) • The Bill is given a number (ie. Bill 23) according to the order in which it is introduced into the legislature relative to other bills • 1 Reading is when the Bill is introduced and the MLA’s vote on it for the first time • A Bill is given a unanimous vote on 1 Reading virtually all the time (theory – to ensure nd nd opportunity to at least debate the principle of the bill at 2 Reading) (c) 2 Reading • When the Bill comes before the legislature a second time it is known as “2 ndReading” • At this stage the MLA’s debate the principles of the Bill nd • At the end of 2 Reading debate, the MLA’s vote on the Bill • If the Bill passes with the support of a majority of the MLA’s, it is then sent to Committee Stage (d) Committee Stage • The Bill goes to a committee of MLA’s (in BC this is usually all of the MLA’s sitting as a “committee of the whole”) • In Committee Stage the MLA’s get to question the Minister who has responsibility for the Bill • The Committee proceeds through each section of the Bill • The questions are very detailed and pertain to specific sections of the Bill • An MLA may propose amendments (changes) to the Bill during this stage • If an amendment is proposed, the MLA’s vote on it, and if it passes, the Bill will proceed as amended • When the MLA’s have finished going through each section of the Bill, the Committee reports back to the legislature • The Committee Chair reports to the legislature on the passage of the Bill in Committee Stage, including any amendments made during the CommitterdStage • The Bill is then re-introduced to the legislature for 3 Reading (e) 3rd Reading • The legislature votes on the Bill again for a third and final time • The Bill is virtually always passed at this stage • The Bill is then sent to the Lieutenant-Governor for Royal Assent (f) Royal Assent • The Bill is presented to the Lieutenant-Governor • The Lieutenant-Governor offers Royal Assent (he just nods) • It is now that the Bill finally becomes a Law 4 Secondary Legislation: By-Laws, Orders in Council, Regulation (i) The Concept of Delegation - In our legal system, legislatures are permitted to delegate to make law making abilities to other (subordinates to legislatures) below them - Reasons for delegation o Work load issue: they can’t all do the legislating o Lack of experience, too detailed and technical for them -> delegate people with more knowledge in that area, or they do it as a full time basis o They must delegate by statues, must pass a statue through legislative process, and some time during the process, it has the indicate its delegating to whomever and specifically (identify that legislative authority) (ii) Types of Secondary Legislations - By laws, Orders in council, regulations o Ex: By Laws: City council, they make by laws – secondary legislation under legislative authority (City Councils are creations of provincial governments) o Executive Council (Cabinet- Premier, Prime minister): they only have power when they have the majority support of the MLA, power granted by the provincial legislature (power’s delegated for them) (ii) Minimum Wage - Shows up on the statue - The employment standards act: sets up the minimum standards of the employer requires to pay LEGAL REASONING I. Legal Reasoning and Case Law: The Doctrines of Precedent and Stare Decisis Case Law (sometimes referred to Common Law) - 2 ndmajor source of law - Every time a judge makes a decision, they create a case law o They don’t just give a bare bones decision (such as “guilty”), they provide reasons in writing (especially in higher courts) o Judge will set out facts about the case, also set out the relevant law, then set out legal issues that need to be resolved (disputes), then judge will indicate decision, and set out reasons for their decisions, and within the reasons we find the case law. (Case law emerges from the reasons for the decision) o Conflicts between elective representatives and unelected representatives (judges are appointed) Legislative law conflicts case law?  Legislative law always win, can do anything they want as long it’s part of the constitution  Laws are made by elected representatives should prevail over other laws - Ex: If there is a common law that’s centuries old (sky is blue) and government passes legislation against it, legislation wins (sky is black act) -> the sky is black in legal situations Legal Reasoning 1. The Concept of Precedent o Precedent: basic ideas that judges should treat similar cases in a similar way 5  Previously decided cases, serve as law to be followed by future cases, meaning that the judge is obligated from the facts of the past case and present case should have the same decision (treating similar cases the same)  Central principle for legal system  Principle that a judge must follow a judge from a previous case and the law and the act are similar in both cases  Look only at the facts that are relevant and are similar enough to the previous case  We like this because it allows certainty and predictability in case law = stability • How? (Certainty) in a sense that we know (Ex: upcoming pianist and a potential career in front of here, and someone slams your car door, you sue them for negligence, the lawyer researching case law since you asked how much you can get from this, (ex hands critical) , find the range of compensations from previous cases o Able to predict the compensations before heading to trial (Predictability) 2. The Concept of Stare Decisis o Stare decisis: precedence of higher courts must be followed by lower courts in the same jurisdiction, a rule of how precedent should operate o Differ from precedent o Case law sometimes referred to be common law (vast body of judicially law made common law legal system extends back about 800 years in Britain – inherited precedence from Britain) o Legislation more important forms of law (since 150 years ago) o Before: common law was more important • Now: Lives more governed by legislation • If they speak English, they go by common law ( means they used to be under the British influence) 3. The Operation of Stare Decisis: Binding Authority vs. Persuasive Authority (a) Binding Authority: o A court is only bound to follow decisions from higher courts in the same jurisdiction (b) Persuasive Authority: o Another Court in a different jurisdiction can’t just be ignored (might constitute persuasive authority) o When it doesn’t fall under binding authority, judges can choose to follow reasoning in another case even though they aren’t bound to (might be able to persuade the judge to follow the decision of another case, or judge might find the reasoning in other case to be persuasive) o How do we know what a judge will find persuasive? o Similar facts & laws (i) Nature of the Other Jurisdiction - Hierarchy of jurisdictions, (some jurisdictions are view as highly persuasive to our courts, highly unpersuasive, and somewhere in between) o Most persuasive jurisdictions to BC Supreme Court: Other Canadian jurisdictions (other provinces, federal courts have high persuasive value because these jurisdictions area similar to ours (some constitution -> very similar in legal framework in which they operate)  Second: England (inherited legal system from British, High Court until 1949, court systems similarities)  Three: Other British Commonwealth Jurisdiction (50-60 members) • Democratic, and have well developed sense of law and legal systems (Australia and sometimes New Zealand; less because it’s so small) - Four: other foreign jurisdictions: Japan, Germany, France - USA: approximately where England is (ii) Level of Court - The higher the court, the more persuasive 6 4. Issues in the Operation of Precedent and Stare Decisis (a) Predictability and certainty vs. rigidity - Rigidity: if we too strictly adhere to Stare Decisis, law might get frozen in time (decision made many years ago applied today -> no change to account for the passage of time) (b) Are courts bound by their own precedents? (Same level of courts) - Judge isn’t bound to follow the decisions of their own level of courts (most of the time) 5. Avoiding Precedents: The Art of Distinguishing - Arguing that something that isn’t precedent - Distinguishing from the previous case • EXAMPLE: Criminal sentencing (assault) A judge trying to decide a proper sentence, for the convict, female 25 o Present case: female, 25, brown hair, 1 offence  Number of offences is relevant for the time of sentencing  Propose precedent 1 is similar due to first time offending  Age doesn’t matter, hair Colour doesn’t matter  Precedent 2 is different due to 8 conviction (material relevant) • Would distinguish between the two due to material fact o “Precedent” #1: female, 20, black hair, 1st offence [probation] o “Precedent” #2: male, 23, blond hair, 8 offence [jail 2 months]  Look at relevant facts from previous case II. Legal Reasoning and Statutes: The Rules and Principles of Statutory Interpretation 1. The Problem of Ambiguity - We hope that statues and legislations to be clearly written, general clearly written - Lack of clarity, would rise to more than one interpretation (missing passage etc.. ) - Has to say one thing, not 5 different things o How do we fix this?  Don’t go back to the legislature  Ends up in front of judge in court because it rises in a context that matters (Crown says it says one thing, offence says it’s the other thing), judge has to decide  How does the judge do this? • Always keep the mind of fundamental principles • Judge is obligated to find the legislative intent behind the law (the fundamental principle) o Legislation is the expression of the will of the people o Not okay for judge (unelected) to make it mean what they want it to mean, makes it democratic 2. The Fundamental Principle: Determining Legislative Intent - Looking at specific laws and rules, that have been developed through centuries 3. Resolving the Ambiguity: The Rules and Principles of Statutory Interpretation (a) The Three Rules of Interpretation (i) The Literal or “Plain Meaning” Rule - If we’re looking at a word or words that are ambiguous in the legislation, we have to take the words that are ambiguous, we have to take the ordinary simple meaning of the word first - #1 is the most common meaning of the word - Always go first with the ordinary meaning of the word - Rational: Legislation is the way of the legislature speak, they want to be spoken in a way by the largest number of people that could understand as possible since legislation is the expression of the will of the people • EXAMPLE: A municipal by-law requires all “dogs” within a municipality to have licenses. There is a zoo within the municipality with a wolf exhibit. Do the wolves need licenses? o Legal argument is an apply law fact (applying legal concepts) o Ambiguous word here is “dog” o Yes, wolves are part of the canine family, but wolves aren’t usually considered as dogs 7 o Find the legislative intent behind the law by using the common meaning of the word (ii) The “Golden” Rule - Always go with the plain meaning, unless it leads to absurdity - Gives depth - Goal: finding the legislative intent behind the law - Assuming legislature doesn’t pass laws to do absurd things • EXAMPLE: A municipal by-law requires a store to close at 10 p.m. Lawyer for the store tries to argue that this by-law does not prevent the store from re-opening at 10:01 p.m. • The ambiguity on the word: closed o Close usually doesn’t mean it’ll be closed permanently, but this meaning would make the bylaw absurd (close their doors and open them again immediately) o Intent: businesses closes at night, and reopen in the morning o Golden rule to prevent the absurd result (iii) The Mischief Rule - When a judge is interpreting an ambiguous law, must determine what the mischief problem is - Interpret the law in a way that allows the law to address the mischief and the law it was trying to address • EXAMPLE: Shortly after motorized cars become common place, a law in 1905 is passed requiring all “vehicles” to have seatbelts and bumpers. Does this apply to a horse-drawn carriage? o He gets a ticket for not having a seatbelt or bumper o The ambiguity: vehicle (a conveyance; something used to transit people or things) o The mischief: the motor vehicle meaning as a motorized vehicle rather than anything used to transport people or things (human error) (b) The Three Grammatical Principles of Interpretation - Law is all about language - How we sort things about grammatically - Grammatical rules that apply when interpreting legislation (i) Expressio unius est exclusio alterius - Means: The express mention of one thing means the exclusion of another - The words that don’t appear in the statue were left out on purpose - If a law is specific, it cannot be apply generally • EXAMPLE: There are two sections of a statute which address the employment status of any employee who gets into trouble with the law: Section 1: “Any individual suspected of committing a criminal offence shall be suspended.” Section 2: “Any individual convicted of a criminal offence shall be suspended without pay” Question: If an individual is suspected of committing a criminal offence, can they be suspended without pay? (ii) Ejusdem generis - A general word or phrase takes its meaning from its specific word or phrase that precedes or succeeds it - Common for legislative drafters, when they want to draft a law to applies to a number of things with lists of things or phrases (a, b, c, d, e) - Specific phrases followed by general (can be the other way around) • EXAMPLE: A law prohibits the sounding of a “car-horn, fog-horn, ship’s horn or any other horn” with 200M of a hospital. What about a trumpet? o Does it fall under “any other horn”? o Takes its meaning from its specific word or phrase that precedes or succeeds it (is a trumpet like a car/fog or ship horn?) • Not guilty, a trumpet is not a meaning of any other horn because it doesn’t fall other any other horn • But if its like a car horn (guilty) (iii) Noscitur a sociis • EXAMPLE: A law prohibits “any disorderly house, house of ill-fame or bawdy house”. Would this prohibit a place where gambling occurs? 8 THE CANADIAN CONSITUTION (PART I) I. Introduction 1. The Purpose of a Constitution Constitution: should typically do 4 things  Set out basic structures of government: Executive, judicial, legislative branch  Set out the various branches of government (set out the power of those branches)  Place limitations of power on the government  Set out a process by which allows amending for the constitution when necessary (should not be often) 2. The Colonial Origins of Canada’s Constitution - Canadian Constitution: Colonial Origins o Came from one of the many British colonies o The beginning constitutions of Canada: was the simple British statues that spell out the authority of the colonies to make laws for themselves o Canada gets law making authority from Britain (Colonial power) o Statues:  Colonial laws of Validity Act 1865 • British statues passed from British parliament • Could make laws (make sure they’re local in nature- ex: feeding ducks in pond) as long they didn’t contradict laws made in the British parliament  British North America Act of 1867 • It is the main document that established the structures of government, and the political and legal structures and sets out the powers of those institutions  Statues of Westminster 1931 • Represented British parliament giving up their power over some of the self governing dominions (Canada, Australia, New Zealand, Northern Ireland) o Britain would no long pass any laws affecting these colonies o More of a formality (they weren’t passing many laws before that) Constitution act of 1982 does not replace the previous one, it adds to it II. Pre-1982 Constitution: The Constitution Act, 1867 - Known as the British North America Act of 1867 - It is the main document that established the structures of government, and the political and legal structures and sets out the powers of those institutions 1. The Preamble - Introduction to a statues, explain the significance of the statues - Don’t use it for all statues - Only used for big and important, complex statues - Sets out the purpose of the statute and what it wants to achieve (a) The Implied Bill of Rights - Bill of Rights: a constitutional document that sets out fundamental principles, the basic principles of freedom (freedom of expression, religion, right to vote etc.) - Charter of Rights is an explicit Bill of Rights between 1867-1982 our rights weren’t explicitly stated in our constitution - Arises from a interpretation from the Preamble: with a Constitution similar in Principle to that of the United Kingdom o If we’re to have one similar to the UK’s, we must have the same rights and freedoms that Britain had as of 1867  There was freedom of speech, right to vote etc. in Britain in 1867, they should also have these constitutional principles in Canada (implied that we should also have these rights too) - Implied Bill of Rights has imported 4 fundamental principles into the Canadian Constitution o Basic democratic rights (not voting) o The Basic 4 democratic rights  1) Freedom of Speech 9  2) Freedom of the Press (form of speech)  3) Freedom of Assembly (allows you to physically gather with people)  4) Freedom of Association (allows you to associate with others ex: whom you may never meet like joining with a political party across the province) - Doctrine of parliamentary supremacy: Parliament as supreme law maker o Struggle between monarchy and parliament o People have a right to govern themselves (no single person has some divine right to govern) - Doctrine of Responsible Government o Through elections (voting) o Accountable to the people through the electoral process - Doctrine of the rule of Law o Rule of law; power can only be exercised under the authority of law o Only legitimate power is according to law o Society of legal powers than arbitrary power o No one above the law, law applies to everyone  People above the law: dictator (only some countries)  Rong Corolli (1959 case) in Quebec: about Jehovah’s Witnesses spreading the word, allowed bail before court  Dupliessis (Premier at that time) didn’t like the bail, place Rong out of business since didn’t let his licensed to not be renewed  Sued the Premier and won o We all conduct ourselves according to the law 2. The Division of Legislative Powers (D.O.P.) • Federal and Provincial • United Kingdom isn’t a federal system • Power is divided by subject matter: Federal Jurisdiction, Provincial Jurisdiction • Federal isn’t superior to provincial jurisdiction (b) Federal Legislative Power: Section 91 (Refer to Handout) • Entire section 147 sections long • Introductory sentence: has some significant federal power within it. (i) POGG Clause – Residual Power • Peace, Order, good government = POGG o Stereotypes on us • Federal government can make laws for the POGG of Canada • Residual Power: “ in relation to all Matters not coming within the Classes of Subjects by this Act…” • Constitutions should last for decades or even longer within amendments o Foresee possible things that need to be addressed in the future - Not province’s power: it’s federal power - Anything unstated/ problems become legislative authority - 2 broad powers: (in federal) o Natural Emergencies: that would affect the entire country (like wars WWI, WWII), government can take control of key industries, materials (petroleum, metal) Intemperance (movement against alcohol) o Matters of national concern: there may be issues that arise that have dimensions that go beyond a single province’s ability to address the problem, or beyond Canada and goes international Pollution, finding the ways up the oceans going towards (another country like Alaska) , and BC government can’t do anything, could affect our relation with USA - federal can do something under POGG power (ii) Specified (“Enumerated”) Areas of Federal Legislative Jurisdiction (c) Provincial Legislative Power: Section 92 HANDOUT.. (d) The Concept of Ultra Vires - Ultra: outside or beyond - Vires: jurisdiction; outside of jurisdiction 10 - Government can only do what they’re authorized to do, otherwise they’re acting “ultra vires” (going outside their area of jurisdiction) o Illegal - If they’re within their jurisdiction it will be “intra vires” - Ultra Vires: the major way to challenge government’s action (try to stop government action, would use ultra vires) (– before 1982 (before charter existed) o Second argument pre- 1982: implied Bill of Rights  Federal government passes the law that says no more elections (setting up government as a dictatorship • Go to court, ultra vires • Doctrine of responsible government, have elections (that’s how government’s accountable) = declare law unconstitutional - Post 1982: Charter of Rights (e) Watertight Compartment Theory & Constitutional Rigidity - Strict division of legislative powers under section 91 (federal) 92 (provincial), each government sticks to their own area of legislative authority (A watertight compartment where one government can operate and one must stay out) o Section 92-6, healthcare: province can operate, federal government must stay out o Downside: lead to constitutional rigidity: prevents governments from working together in areas where it would make sense for both governments to collaborate, preventing the other level of government from doing anything  Way around it; healthcare system • Mid 1940’s in Saskatchewan Tommy Douglas- healthcare shouldn’t be private, should be available to everyone • 1961: set up first public healthcare system in North America • Country was watching, people loved it • Right thing to do + good politics • Problem: federal has no power to establish this system across the country -> bribe them with their federal spending power (set up system that meets certain conditions, give them money for each dollar spent) 3. The Division of Legislative Powers and the Courts (a) Provincial Authority Re: Courts and Judges  92-14 o Has authority and establish courts within the provinces o BC Court of Appeal, BC Supreme Court, Provincial Court of BC are under 92-14 which allows the provincial government to establish and have authority over them o Power to appoint judges in the lowest court only (refer to handout 4) (b) Federal Authority Re: Courts and Judges - 96 o The superior courts o No county courts in BC o Governor General appoints judges to superior courts in the province o BC Supreme Court and Federal Court of Appeal have divided authority - 101 o Federal government to established/ operate court of Canada = Supreme court of Canada  Exclusively Federal o Better administration of the laws of Canada: laws made by the government of Canada THE CANADIAN CONSITUTION (PART II) III. Negotiating Constitutional Change 1. Historical Context • For about 15 years mid to 1960s – 1981/82 on and off constitution negotiations took play • At First Minister’s Conferences • Premiers would get together to have constitutional conferences 11 • Problem: very difficult to reach everyone’s agreement o Leading priorities  Sending out – clear amending formula  Patriation: our constitution should be 100% our own, any changes from constitution would be make from our own domestic processes, in our own country 2. The Amending Formula Impasse • Major tension: disagreement what is the necessary amount of agreement and the form of agreement to reach that constitutional amendment? o Ex: necessary for federal government to agree with provincial government? Would we need a super majority? Or a unified decision? o Problem: No clear amendment formula, need to go through the British parliament for amendments  Solution: Amendments only applicable if agreement of federal government and 10 provinces – another problem: population density? Unfair?  By September 1980- no deal has been reach • Solution: bring the amendments to British parliament for them to pass and it will be in our constitution?  1981- Supreme Court asks: how much provincial agreement required for agreements? – Substantial majority required. What does that mean?  1981 final attempt – federal government + 9/10 provinces: Quebec didn’t agreement, “ kept dreaming about independent government” (separatist government) 9/10 counts as substantial majority: and changes proceeded even with Quebec’s agreement – even until this day, Quebec never signed on to these changes  April 17 th1982- royal assent given by Queen Elizabeth to constitution act, 1982 IV. The Constitution Act, 1982 1. Introduction • Does not replace constitution act of 1867 • Expansion of our constitution • About 52 sections, divided into 7 parts 2. The Charter of Rights and Freedoms (part 1 of the constitution: sections 1-34) • Purpose to protect rights and freedoms of Canadians • Reasonable limits – “reasonable” decided by judges (a) Section 1: Limitation Clause – telling us we have these freedoms, but subject to limits • Protect against government actions, not against non governmental actions (not your neighbour) • Underlying theory: No right is absolute o Absolute right: “saying whatever we want, without government having any say” o Government cannot violate laws: we have a free and a democratic society  If government wants to succeed under section 1: arguing what they’ve done was a reasonable limit, they’d have to do the Oakes test • The Oakes Test 1986– a test proposed by the judge, to test if your reason is reasonable o They would use the Oakes test every time the charter is argued in cases (passed by supreme court – precedent) o 4 stages of Oakes test: government must pass every single part to win the case, cannot just pass one 1. Sufficiently important legislative objective (addressing a “pressing and substantial concern”) • Needs to have a very good reason for limiting the right 2. Rational connection • What is the rational connection between the charter violation/ achieving that important objective? • Must demonstrate how limiting the charter right allowed you to achieve that objective 3. Minimal impairment (of the Charter) 12 • If the government limited the charter right in the most minimal way possible (doesn’t need to take away more than it needs to) • Needs to show their respect for the charter and yet achieving their objective 4. Overall balance (between effects of the measure, and the legislative objective) • Court steps back and take a bigger picture view – trying to balance the situation • Balancing act between the good and the bad, which outweighs which? • Achievement of government’s objective vs the freedom • R. v. Oakes (1986)(SCC) o Searched by police and found 400 dollars and 8 1g vials of hash oil – amount usually for dealers o Oakes: claim its for own use, and the money is from work compensation o Either guilty for trafficking or possession? o Law: Narcotic Control Act (section 8)  Judge is to assume its for trafficking unless the defense proves its for personal use (automatically concluded) • Goes against presumption of innocence o Section 11D: guarantees the presumption of innocence o Goes to court and claims violation of Section 11D: violated by section n8 of the Narcotics control act, now under section 1 government undergoes Oakes test o Got passed first stage, fell down during part 2 o Government must demonstrate rational connection: anyone who is caught with narcotic is claimed as a drug dealer to achieve their objective  Problem: doesn’t specify how much possession of a narcotic is considered a dealer?  Even with 1 joint you’d be consider as a trafficker! – unrational  If government passed stage 2, would of failed stage 3 too, (violating rights of many more people than you need to)  in a real case, you’d have to argue all 4 points of the Oakes test 1 (b) Section 2: Fundamental Freedoms • Freedom of expression: RJR-MacDonald Inc. v. Canada (1994)(SCC) o Major tobacco company o Claims: violated Freedom of expression: argued the mandatory warnings on tobacco box o Government: forcing companies to express in a way that they don’t want to o Arguments succeed: court says that is a violation of expression, but why does the tobacco packaging still have warnings? o Oakes test: section 1 - imposing a reasonable limit of those companies (government’s objective) o Rational connection: by putting the labels on the box, decreases the chances of people smoking – advertising works • Freedom of religion: R. v. Big M Drug Mart (1985)(SCC) o Couldn’t shop on Sundays (vast majority of businesses were closed) o 1980’s Canada was a diverse society, people want to open/patronize businesses on Sunday, except law in Alberta (The Lord’s Day Act) – singular ONE person? o Law: promoting one religion (Christianity) ; making everyone close businesses on Sunday o Big M Drug Mart decided they were going to open on Sundays, absolute violated this law o They had to argue, the law itself was unconstitutional, and violated the charter of rights, and since it violated it, it is unforceable o Claimed: violated freedom of religion –  Have the right to have religion/ without interference o Also the right of religion to not have the government impose religion upon you  Violated section 2A of Charter (c) Sections 3-5: Democratic Rights • The right to vote: Sauve v. Canada (2003)(SCC) o Sauve: serving federal crime in prison 13 o While you’re in federal prison, you were denied to vote o He claims: violation of section 3 rights – every citizen has the right to vote o Section 1 – government tries to justify -> purpose is to teach a lesson, in addition to punish offender in jail, taking away other rights, by doing this, they would think of what they’ve done o Since 2003 Federal prisoners allowed to vote (d) Section 6: Mobility Rights notes . (e) Sections 7-14: Legal Rights • R. v. Morgentaler (1988)(SCC) o Section of criminal code restricted abortion, only allowed performed at a hospital; required application to a committee in a hospital comprised of three doctors (therapeutic abortion committee) they look at it at a legal text o Only allowed abortion continuation of pregnancy would danger the life and health of the women o Dr. Morgentaler: women should have the right to abortion, the women should be able to decide, not the country  Sets up a clinic (abortion clinic) – very opened  Arrested/ Charged under criminal code due to setting up clinic, not allowing abortions unless required criteria met  “Procuring a miscarriage?” punishment: up to life imprison  This section of criminal code violates constitution; can’t enforce law • Section 7 restriction of abortion, violated the women’s liberty & security (fundamentally important decision of the women) security violated (state telling a women that you shall have a baby – dictate by law; how the women should use their body for the next 9 months) • SCC agreed; declared CC unconstitutional; since 1988, no restriction on abortion of Canada - Assisted suicide: end of life situation, depressed, can’t do it for themselves - asked someone to do it for them; denied by the Criminal Code o Suicide isn’t a crime, assisted suicide is a crime o Criminal Code violation of her right of Liberty: fundamentally important decision (f) Section 15 – Equality Rights (i) The Meaning of “Discrimination” o Three basic elements to it: distinction created, distinction is based upon personal characteristics, there is a negative impact/effect (two general ways: 1) where there is a burden of law imposed on one person, but no imposed on others 2) When there’s is a benefit conferred on others, denied on that person) o Distinction has to be based on personal characteristics: race, ethnic origin, colour, religion, sex, age, mental or physical disability (ii) Analogous Grounds • General prohibition on discrimination by government • Examples of prohibited grounds of discrimination: race, ethnic origin .. etc. • Because those grounds are listed, we referred to them as enumerated grounds of prohibited discriminations • Analogous – means that it is similar to something else, there’s similarity • The intention to create a broad prohibition on government discrimination and use the enumerated grounds to provide examples (implied: other forms of discrimination that aren’t explicitly listed there) o What are implicit grounds?  They must be analogous to enumerated grounds, that explicit grounds were stated there • What’s the common theme of the enumerated grounds? o Deeply personal characteristics that can’t be changed or government has no business expecting you to change it (like ethnic origin) (iii) Section 15(2) and “Affirmative Action” (g) Section 24: Remedy Clause: provides 2 remedies for Charter violations (i) General Remedy: 24(1) 14 (ii) Exclusion of Evidence: 24(2) (h) Section 32: Applicat
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