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Crim 135 Notes

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CRIM 135
Jay Healey

Crim 135 new - Week 2 Lecture notes -Cotterrell argues that natural laws has become a compromise among Role of Law and Sources of Canadian Law diverse interests within a population →the operation of law doesn't rely on "time-less" principles but more on THEORETICAL PERSPECTIVES "time-specific" theories -U.S Constitution + Canadian Charter of Rights and Freedoms = natural law -Law is the skeleton that structures our economic/social/political lives ideals →barometer of the nation's view on human relations (freedom of religion, conscience, expression etc..) Positivism - theory that laws are to be understood as "social rules" valid Legal Realism - argues that legal doctrine cannot be understood without because they are enacted by "the sovereign" or derive logically from examining social/economic/political context in which the doctrine takes existing decisions and that ideal or moral considerations should not shape limit the scope or operation of the law (what was is what is - precedent) →-legal realists = skeptics : believe that to understand legal process, one morality isn't taken into consideration must be aware of the social/economic/political contexts where law (Criminals are born not made/nature not nurture/focus on biological + arises/changes/persists psychological factors to explain criminal behaviour) -idea based on legal rules based on judicial decisions that benefits the -"Positivism aims to search for, explain and predict future patterns of crigreater society - no supernatural authority applies and behaviour using biological or individual disciplines in an attempt to →Describes what the law really is identify key causes of crime." being certain or very confident of something →believe that outcomes of legal disputes are not determined by law books but merely on the mood of the judge and what influences him -Positivists argue that human behavior is actually pre-disposed and determined by individual and biological differences. Marxist Theory - economic equality provides foundation →positivists want a legal system that protects liberty/democratic -law should exist to insist that economic equality will be fulfilled institutions + prevent abuse of political power (dialectical materialism must lead to a violent overthrow of capitalist class) →divide practice of law + practice of politics = increased certainty/ stability/ predictability Critical Legal Theory - emerges in late 70's/ conceptualized in normative -want clear separation between law and morality terms (common/standard), pointing consistently to issues of social Simply put, what drives people towards crime is more than just a disadvantage matter of free-will. -theorist look at the purposes/values/assumptions of the legal system - argue from personal/political values →want to expose study of law and show that it's an "ideology" that Natural Law - older legal theory that positivism/ clear link between law andupports and makes an unjust political system morality - virtually dead lex iniusta non est lex - an unjust law is no law at all Feminist Legal Theory - (suffragette movement in 1960s) - historically -Natural law philosophers believed in universal rightness/wrongness of written by man and thus inadequately reflects the role of women in certain human behaviour and that all societies condemn them equally society especially in terms of law (god-given moral values) -different movements within this theoretical perspective (Person's Case) Problems? anyone can invoke their version of the natural law in order to -Feminist Theory of Law: states that both language/logic of law justify their actions reinforces male values + prevailing perceptions of law showcase male power and female weakness 1. First-Wave Feminism (middle class) : social + legal inequalities, lacvkiew law and legal practice as a path for moral, political, and of educational opportunities, denial of right to vote economic debate 2. Second-Wave Feminism: lack of access to birth control, double( -realists, natural law, Marxists, critical legalists, feminists) standard of male/female sexual expression, the growth of working ---------------- women, discrimination of lesbians and coloured women Sources of Canadian Law →challenged the culture of subordinating women - believed that institution →Magna Carta - 1215 (British Legislation) - sections of the Magna Carta of law was problematic and contributed to female discrimination allowed for a council of 25 barons the opportunity to change some of (First-wave addressed their own concerns with inequality in laws / the king's decisions second-wave challenged the culture) (royal powers were no longer absolute) 3. Third-Wave Feminism: critiqued notions like reasonableness, →Feudalism (abolished = Ontario + Quebec were established objectivity, neutrality (movement was response to failures of second-wave) →Royal Proclamation of 1763 (Upper and Lower Canada) → Quebec Act : →want change in stereotypes of women in media and language right for Catholics to participate in government + for use of French civil portrayals law MEN CREATED LAW AND DEFINED WOMEN ROLE IN THE LAW AND IN →Constitution Act of 1791 LAWS →The British North America Act of 1867 ----------------- -Canadian Law influenced by British, French, and U.S legal systems -R v Caine - imprisonment for possession of marijuana - unconstitutional and -Canada is a "common law" country, looks at precedents and a violation of Section 7 of the Charter of Rights and Freedoms incorporates it with new laws 1. Positivist : inclined to support majority + may support the Charter (enacted law) Statute Law - originated from the House of Commons (Parliament) and 2. Natural Law: support the decision as to condemn it legislative assemblies at the provincial and territorial level 3. Legal Realist: want more info about social/political factors in which Caine's (first, second, third readings by senate) decision was made → don't care about the justification like Positivists + want Case Law - established by decisions rendered in specific court cases to know the logic behind the decisions known as judicial precedents -courts will look at precedent cases to 4. Critical Legalist: same as Legal Realist, want to know more info determine an appropriate punishment or result →will try to incorporate morality into analysis and be more critical on the Problems with Judicial precedents majority's judgement 1. try to incorporate current situations with precedents/pre-existing 5. Marxist: may view Caine as a victim of a system that discriminates on case law = courts + counsels making stupid, illogical decisions particular form of industry (marijuana) but support already established 2.the courts ability to reverse/change its decisions = change earlier industries (tobacco + alcohol) decisions (critics argue that judges shouldn't have the power to make 6. Feminist: may be incline to support Caine arguing that equality while stilthe law but interpret statutes) using drugs is connected to gender equality ??? WTF Custom - practices and patterns of social behaviour through which -Same Sex Marriage - Bill C-38 (July 2005) provided for the equality of society has come to organized itself (tradition) homosexuals and heterosexual men and women within civil unions Books of Authority - scholars who have written authoritative texts or ---------- commentaries summarizing various forms of law or associated -2 opposing groups on views of law principles of law (help judges) → most prominent authors: Coke 1.view law and its transactions as morally neutral exercises of logic (Institutes) + Blackstone (Commentaries) and interpretation (positivism) →courts seek guidance from information from early scholars + expertise from "expert witnesses" who give their opinions ex. Rabey v. R (assaulted a woman) - court referred to books of authority/publications/articles = aquittal →Canadian Charter of Rights and Freedoms came out in 1982 because Trudeau wanted to re-patriot Canada by having Canada have a separate Charter so Canada can control their own charter Other Sources 4 sources of law: principal sources, statute law, case law, subsidiary sources (custom and books of authority) →Outcomes of the legal process →examining the historic evolution of the law in terms of conflict/compromise/consensus (amendments) -legal definitions being changed → "murder" to "capital murder" to "first degree murder" (sequence of statute law over time → inception to present) -build consensus - Hegemony: strong influence over something else (ex.nations) : vital to legal control ------------------------------- Introduction to Canadian Law and Legal Institutions -Elmer Driedger quote "there is only one principle/approach, the words of an Act are to be read in their entire context in their grammatical sense harmoniously with the scheme of the Act. the object(ive) of the Act, and the intention of Parliament. →impossible to describe impact that this quote has had on judgements of the Supreme Court of Canada in the 26 years since 1984 ---------- New Brunswick Human Rights Commission v. Potash Corporation of Saskatchewan (2008) -employee filed complaint with NBHRC because he was asked to retire at the age of 65 according to policy in his employer's pension plan - said that this argued age discrimination →under Human Rights Code, age discrimination changes are declared not to be applicable under s. 3(6)(a) if employee is fired according to a "bona fide pension plan" (real pension plan) →Chief Justice McLachlin commentary "how are we supposed to understand the meaning of "bona fide" and their "task before the court is one of statutory interpretation. This requires the relevance to this employee's termination of employment at 65 Court to engage in an interpretative inquiry based on the words and purpose of the statutes. Concludes that a pension plan is exempt from the rights provisions of the code if.... • mandatory retirement providing of the pension plan were adopted for purpose connected to operation + sustainability of the plan • mandatory retirement providings were adopted in good faith + not • protecting employees under pensions plans from being deprived of right as sham to cheat employee rights to work because of age discrimination • mandatory retirement providings are reasonably necessary having • protecting financial security of employees by allowing pension plans to regard to the operation + sustainability of the plan operate on sustainable basis ----------------- -section 3(6)(a) is directed at resolving friction between the 2 goals if conflicts Principles of Statutory Construction arise -starting point of statutory construction is in the words of the statue = if clear --------------- = end of the matter Chief Justice Conclusion -all start from the premise that the term "bona fide" is vague -conclude that exemption from age discrimination in phrase "termination of (section 3(6)(a) has no specific way to be read - simply reading the section employment" because of terms/conditions of any "bona fide" pension plan as it is written should be interpreted as.... -the "no-sham" test that section 3(6)(a) purpose is nowhere to be found in "A bona fide pension plan under s. 3(6)(a) is one whose mandatory the texts of the section retirement terms: "What did the legislature intend by the words "termination of employment... • adopted for purpose to connect operation + sustainability of because of the terms or conditions of any bona fide ... pension plan?" plan →confronted with a phrase that has more than one interpretation = rely • adopted in good faith + not cheat employee rights on principles of statutory construction • are reasonably having regard to operation + sustainability →require us to : consider the words in the provisions/read as a whole/ "in the of plan context and in their grammatical + ordinary sense harmoniously with the -appeal of employee was dismissed + age discrimination was acceptable scheme of the act, object(ive) of the act, and intention of Parliament provided that they met the standards above --------------- ------------------------------- Purposive Perspective of Section 3 Castillo v. Castillo -overall purpose of section 3 was to REDUCE discriminatory practices -focussed on limitation period for bringing action in the province of Alberta -limitations that follow are to further reduce discrimination while allowing some flexibility to ensure fairness and achievement of employer goals -Castillo's had car accident in California + wife brought action against husband in Alberta court just before 2 year limitation period had expired -General purpose of the limitation found in section 3(6)(a) is to allow →1 year limitation period in California had already expired adjustments that may be necessary to allow pension plans to function properly -Section 12 - limitation law of province shall be applied whenever a remedial order is wanted in this province - the claim will be dealt (interpretation should be adopted that allows pension plans to operate in with/judged under the substantive law of another jurisdiction sustainable fashion) →Employer suggest that limitation was result of trade-off between legislative WHAT HAPPENED? goal of ending age discrimination + concern of employers/unions to ensure • Castillos got into car accident in California - the wife filed that goal wouldn't interfere with pension plans for claim in Alberta court to get compensation for damges/injuries "what the legislature's goal when enacting the limitation was to confirm financial protection available to employees under a genuine pension plan + at • the husband successfully got a trial dismissal due to the fact that under Californian law, the limitation period was 1 year same time ensuring that they were not deprived of employment rights" Result • Wife referred to section 12 saying that its purpose was to -ss. 3(1) + ss. 3(6)(a) be read together = promoting dual purposes of apply a 2 year limitation period in place of Californian 1 year limitation period = the trial to proceed • Question whether s. 12 applied to foreign jurisdiction laws →the introduction (preamble) to a statute is always to be read with the • Husband suggest that Californian law shouldn't be ignored - court statute - designed to set out the point of the legislation ex. use of make gender within legislation is always read as including must then apply Californian limitation period + then Alberta limitation period female gender ------------- --------------------- Rules and Principles Proper Interpretation -parties differ in understanding of "notwithstanding" specifically if it cancels outStatutory interpretation in Canada historically rested on the British limitation law of foreign jurisdiction tradition of interpretation of legislative intent 3 rules + 3 grammatical principles continue to exist to aid statute -legislature is aware of inconsistencies = adopts explicit rules establishing an construction order of priority between different depictions THREE RULES 1. read the statute literally -statue declares that it applies "notwithstanding" conditions to the opposite 2. read it in context ------------ -in Castillo v. Castillo case, the Supreme court juggles with difficult question 3. read it in accordance with its intentions of statutory interpretation + using variety of sources to determine legislative THREE PRINCIPLES (GRAMMATICAL) 1. expressio unius est exclusio alterius - expression of one thing is the intent: parliamentary debates/legislative history/relevant reports to government exclusion of another 2 Models of Statutory Interpretation -if government imposes property tax on owners of houses, apartments etc is is assumed that owners of land with no buildings on it not be • British Tradition -a statute is interpreted literally : phrases + clauses are examined taxed closely to extract their precise meanings 2. ejusdem generis - of the same kind -vague phrases will get their meanings from the specific context in →assumed that the law's intent has been fully formulated within the statute language (no need to go beyond wording) which they appear • European/U.S traditions -if public is prohibited from carrying knives/rifles/pistols/clubs and an individual was seen carrying a garden tool, it would be unlikely -in order to determine full intent of legislature, sources may be used that the garden tool would be part of that law (parliamentary/legislative debates + commission reports + statements from those responsible for legislation) -the phrase takes its meaning from the ambiguous word 3. noscitur a sociis - it is known by its associates -assumed that words of statute are no always sufficient to allow legal -they stress the importance of context + implication in interpretation personnel to understand the meaning to vague language -many cases, statutory interpretation are aided by definition sections written of vague language → similar ejusdem generis -the specific phrases or words that follow after the vague word will in specific statutes define its context (ambiguous word takes its meaning from its fellow (ex. Highway - in CCC - defined as: a road to which the public has the right of access and included bridges over which or tunnels through which road words) -Canadian Bar Review: to resolve statutory interpretation disputes, judges passes) must analyze/integrate variety of factors: textual meaning/legislative →intention for definitions is to limit the vagueness + lessen the need for legal purpose/acceptable consequences/presumption of intent debate about the meaning -There also exist Federal/Provincial interpretation acts - contain definitions →attention paid to factors depends on: type of legislation/subject matter + audience/ how precise the language is for words that are to have the same meaning for both legislation + regulation →using this approach = judges how tons of personal judgements to m (hkeeBritish Privy Council overruled Supreme Court ruling and said that women - their discretion is structured/restricted by a "principle-based" prweorfe persons) decision -making -in 1927 though, women were not considered "persons" - only men (principles are guidelines to be used by specifics of a case) --------------- --------------------- R v. Sparrow Case Rules of Interpretation -poor man had a horse with a feather saddle, the horse had a broken leg 1. Plain Meaning Rule - the statute should be read with its literal and then poor guy shot the horse dead meaning -the court ruled that the man violated the "Small Birds Act" →courts shouldn't be reading the statute loosely or impose their own • anyone killing, injuring small birds are violating + guilty of an meaning on the statute even if the literal meaning doesn't make offence and subject to $200 fine sense • the judge acquitted the poor man because the pony was not a bird ex. Dogs in parks must be on leashes... doesn't apply to cats or any domestic animal • the neighing noise would not come from a bird + the horse had more than 2 legs functioning 2. Golden Rule - proposes that words cannot always be read in its • the accused rode the animal - wheresas you cannot ride a bird literal form + that when inconsistencies arise, they should be modified • iron shoes on the horse + what it wears does not contend it to be a bird Repugnancy: disagreeable (BAD) - when it's within a law shouldn't be understood as something bad but as "incompatible" SMALL BIRDS THAT HAVE TO WORKING LEGS AND HAVE 3. Heydon's Rule - (Heydon's Case) - states that 4 things need to be NATURALLY GROWN FEATHERS OF FLIGHT ---------------------- considered when interpreting statutes Precedent - the guiding hand of Statutory Interpretation • state of common law before the statute • mischief(limitation in legal control that statute was intended -members of the judiciary are needed to create law from among completing claims to correct that the common law did not provide -decisions of the Supreme Court of Canada bind all courts in the • the solution that Parliament used to solve the problem country to their interpretation of a specific configuration of fact/law • the true reason for the remedy (solution) -the hierarchical development of case law over time is what takes statute LITERALLY THE PROCESS OF FIGURING OUT THE LEGISLATIVE law from a statement of general principles to negotiated realities INTENT →state decisis : to stand by decided things - to stand by the --------------- decisions of higher courts The Persons Case of 1927 →provides greater predictability and outcome and greater certainty -5 women requested the federal Cabinet to refer to section 24 of the BNAAct concerning the application of law of 1867 -as sections + subsections of statutes are continually changed - room for The governor general shall from time to time to the Queen's name by different interpretations decisions instrument under the Great Seal of Canada, summon qualified persons to the Senate : and subject to the provisions of this act, every person so summoned shall become and be a member of the Senate and a senator →women wanted to know if they were qualified persons and hence were allowed to have occupation of the Senate -Supreme Court concluded that women were not considered "persons" Constitutional law is different from other statute law because it cannot be changed by mere passing of new law through House of Commons + Senate (it's "entrenched" legislation" - can only be changed by specific amending formula) ----------------- British North American Act - 1867 -passed by British Parliament, first united provinces of Canada (Section 91-92 sets out powers of federal and provincial governments + Section 91 gives federal government power to legislate during matters that appear not to fall under any specific provincial/federal jurisdiction) →invoked to ensure "peace, order, and good government" -Act also provides for a national "bicameral Parliament" - legislative body that has 2 branches (House of Commons + Senate) (House of Commons - representation by population) (Senate - representation by region) Are the justices bound by their own decisions, able to change their interpretation of the law only after the HOC has amended the statute in -2 events 60 years later regarded whether Canada was still considered a question? "colony" • when Mackenzie King (liberal minority gov.) lost vote of confidence + Answer? the reversals of previous decisions must be rare if the country's court of last resort is to have legitimacy asked Lord Byng (GG) to dissolve Parliament + call general election "it's worth remembering that for a final court, consistency in decisions is →GG refused to give into PM's request + asked Conservative leader Meighen to form government merely a convenience + not a necessity. No one expects the Supreme Court to break out in a rash of reversals of previous decisions, even if it formally-when Meighen's minority government was defeated in HOC, Byng agreed removes itself from "stare decisis". to Meighen's request to dissolve Parliament →King's Liberals won election = successfully exploited Canadian ------------------------------------------------- Building Blocks of Canadian Legal System - Lecture 3 independence Constitutional Law • 1926 - British Privy Council's decision in a case that struck down an -The Constitutional Law has been described as a "mirror reflecting the 1888 Canadian statute that sought to rid appeals to Privy Council in national soul" + to "protect the values of a nation" criminal cases -Canada is a "federal state" : # of governments within a common →Canada's attempt at abolishing the Privy Council appeal ruling organization was exceeding their legislative powers (direct conflict with BNA act) • each government has exclusive powers -these events were Canada's and other dominion's attempts at • each government also gives a central getting their autonomy and trying to rid ties to British Commonwealth (colonial status) government their exclusive powers (income -1930 conference of dominions = declaration that "no law hereafter taxation/defence/external affairs • tensions between powers of Canada's central made by Parliament of UK shall extend to any dominion otherwise than at request + consent of dominion" (no law made by UK government + provincial government = significant government will be installed in any commonwealth's law books) source of Canada's strength + weakness -------------------------- Constitution Act - 1982 (no province has veto power but allows max of 3 provinces to "opt-out" of -Scholar W.R Lederman argued that Canada should makecC onsattitional amendments - have to have more than 50% of Constitution more independent to Canada population) "to make into law a set of amending procedures that can be carSredtount 41 in Canada entirely by Canadian governments, legislative bodrieq,oires the unanimity of federal/all provincial governments electorates, acting together or independently -requires →the passing of the Constitution Act of 1982 = patriation accomplished • office of Queen/GG/Lieutenant-Governor of (transferring of power (constitution) from mother country to province autonomous nation) • right of a province to # of members in HOC not -embodies 2 significant additions to Canadian Constitutional law less than # of Senators by which a province is entitled 1. formula to be applied in order to make future amendments (changes) to be represented at the time 2. legislation in the mould of US Bill of Rights (Canadian Charter of Rights and Freedoms) → designed to be used by courts to protect rights • use of English/French Language -the need of: monarchy/provincial representation in HOC/use of said by Charter to Canadian citizens English + French/structure of Supreme Court are so important ------------ Amending Formula that unanimous consent of all governments is required -any legislation to eliminate office of queen/GG/lieutenant -there was no amending formula for BNA act 1867 governor must have consent of all federal + provincial • 1964 Fulton-Favreau formula = recommended governments unanimous consent of federal/provincial governments for 3. Section 43 most significant changes -affects only certain provinces • Victoria Charter 1970 - proposed that veto -provisions can be changed with consent of federal government powers be given to Quebec and Ontario on the ground + provinces affected - unaffected provinces have no say that each had at least 25% of country's population ---------------------------- • Trudeau government's amending formula - Section 91 + 92 - Distribution of Legislative Powers similar to Victoria Charter Section 91 sets out areas over which the federal government has -was strongly opposed by most provinces because of jurisdiction Ontario/Quebec veto Amending Formula: solution to how parts of the Canadian Constitution can be modified/removed/added -sets out 3 types of amendments 1. Section 38 - "General Amending Procedures" aka. "750 formula" -states that amendment needs support from the HOC + Senate + 2/3 of the provinces (suppose that these provinces constitute 50% of population) -an amendment to Canadian Constitution may be made by proclamation by Governor General under Great Seal of Canada -dictates that at least 7 provinces must approve constitutional reform (one of the provinces should be Ontario/Quebec) -Courts have determined that legislation is either Intra vires: inside the jurisdiction ultra vires: outside the jurisdiction Co-operative Federalism: network of relationships between the executives of central/regional governments →mechanisms are developed that allow a continuous redistribution of powers/resources without need of help to courts or amending process changes in financial arrangements have naturally altered balance of power (who has more/less powers) (ex. of Cooperative Federalism - equalization payments made by federal government to the poorer of Canadian provinces each fiscal year = to provide minimum standard of public services throughout Canada) War Measures Act - gives federal government extraordinary powers in the event of war or a state of emergency SECTION 91 (27) - gives the federal government exclusive power to legislate in relation to criminal law gives federal government power to enact law in relation to the regulation of trade and commerce -contains "peace, order, and good government" clause - give federal government residual power over areas of jurisdiction not noted in either section 91-92 SECTION 92 (14) - gives provinces power to control the administration of justice/organization of courts/procedure to be employed in civil matters (shows that regional governments have strong involvement/voice in administrating and defining justice) -------------- -much of Canada's legal structure flows from the BNAAct 1867 →the Constitution Act is a lesser source of jurisdictional distribution -division of power exists for reasons that are largely historical - but not necessarily permanent??? --------------------------- Rejection of Constitution Act 1982 by Quebec -Quebec never approved the Constitution Act 1982 →December 1981 - Quebec National Assembly passed a resolution rejecting the constitutional agreement made by the federal government + other provinces (argued that proposed constitutional addressed issues of Quebec's representation in Canadian amendments couldn't become law without Quebec's consent) Constitution →Supreme Court dismissed Quebec's arguments saying that neither proposed changes to Senate unanimous vote or consent was required for a constitutional changes to composition of the House of Commons amendment -the entrenchment of the Charter was opposed by many, particularly changes to Aboriginal rights + amending formula --------------- Alberta + Manitoba = Quebec was absent from the 1982 agreeCanada Clause led to constitutional proposals (none were approved) ATTEMPT FOR QUEBEC TO ACCEPT CONSTITUTION (A) 1. Canada is a democracy committed to a parliamentary/federal system of government + rule of law -PM Mulroney was determined to amend Constitution to make itAboriginal peoples of Canada have right to promote their acceptable to Quebec →Quebec liberal Robert Bourassa was equally interested in reconciliationres/traditions to ensure their societies with rest of Canada Quebec is a "distinct society" which includes French-speaking majority/unique culture/civil law tradition →both separatist + federalist politician within Quebec fel4. Canadians + government are committed to development of official Constitution Act 1982 had rid Quebec's powers ------------------- language minority communities throughout Canada 5. Canadians are committed to racial/ethnic equality in society that Meech Lake and Charlottetown Accords includes citizens from many lands that have contributed = building a MEECH LAKE -1987 -agreement reached by federal government/provincial premiers at Meechda that reflects its diversity 6. Canadians are committed to respect for individual + collective human Lake, Quebec on June 3, 1987 rights + freedoms (in order for accord to be law = have consent from HOC/Senate/legislatures of each province) 7. Canadians are committed to equality of female/male persons 8. Canadians confirm principle of equality of provinces + recognize -Bourassa said that Quebec would be willing to accept the Constitution Actheir diverse characteristics 1982 if number of conditions are met • recognition of Quebec as distinct society (B) 1. Role of legislature + Quebec government is to preserve + promote distinct society of Quebec • veto for Quebec on constitutional amendments (C) 1. Nothing in this section exempts from powers/rights/privileges of • provincial voice in appointments to Supreme Court of Canada Parliament/Government of Canada etc • greater role for province in development of immigration policy (D) 1. Nothing in this section repeal/exempt from aboriginal /treaty PROBLEMS? rights -controversy was that Meech Lake Accord was negotiated by "11 white CONTROVERSIES? men in suits" - fact that future of country was being decided in private •-Pierre Trudeau opposed classification of Quebec as a "distinct by exclusive group of powerful insiders society" - Quebec wasn't only distinct province/region in Canada
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