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Law Midterm Study Sheet.docx

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Law and Society
LWSO 335
Linda Mc Kay- Panos

Law Midterm Study Sheet  Primary Sources of Law: 1) Statutes 2) Regulation/Legislation 3) Common Law  Secondary Sources of Law: 1) Articles 2) Encyclopedia’s of Law 3) Textbooks  Statutes, decide if provincial or federal based on the constitutional division of powers. They can overrule judicial decisions and judges can interpret them. They are a primary source of law.  Doctrine of Precedent, Stare-Decisis, further binding other courts, the Supreme Court at the top, and the Supreme Court is the only one that can overrule itself.  Equity Law; in England there were two different court systems developed, CANADA only has one Equitable Remedy Courts. Equity charges are often behavioural commands, whereas common law charges are often damages instead of behavioural commands.  LEAF (Legal Education Action Fund), a group of lawyers whom intervene in equality cases . LEAF has an important role and persuasion on the court. It began as a women's group. (Vriend Case* where Vriend was fired for being gay at a religious school and sexual orientation wasn't included in discrimination in the charter S15-Equality Rights; took it to Supreme Court and LEAF intervened to help case)  Constitution S52 is the Supreme Law of Canada CANADIAN CHARTER OF RIGHTS AND FREEDOMS: o Charter, S24 is a remedy section which allows court any 'reasonable' remedy which includes reading down the law, striking out words/laws, evidence obtained un-morally. Section 33 *Limitations Clause: the government justifies a law against the charter. Canada's charter is closer to the UN declaration of human rights than the US's. Two different terms in the charter: A. Everyone: physically present in the country B. Citizen: with a Canadian Citizenship. Freedom of expression is argued the most important part of a democracy. You have to be personally affected or the best person to represent (in good standing). The charter can only be used against the government /parliament, either through a wrongful action or wrongful law.  If you are charged and use the charter to defend then it's the shield.  If you make a declaration of the court on a section then it's the sword.  Justiciable means a legal question not a political question. Making sure that it applies to the law and is not a political standpoint. (you have to be personally affected or best person to represent (standpoint); (against government and parliament)  Prerequisites before challenging the Charter personally: Step 1- Has a legal right been infringed? Step 2- If yes, then is there democratic reason to do so (Charter S#1) Step 3- Oakes Test  A) show the law/action is proportional  B) rationally connected to the objective  C) proportionality between effect and objective  Charter s33 is not-withstanding clause, posing a law that doesn't uphold the charter and lasts for 5 years and then is reviewed. This is unique to Canada. PRO= Government may know what is best for country. CON= Taking away our fundamental rights.  Example: Quebec tried to say that all of their laws are not-withstanding the charter but the charter said that you have to do one by one for each law not one blanket single omni-bus attempt. There is said to be a political price to pay if you try to pass one of these laws (social suicide).  Charter applies to government infringes, whereas the individual human rights acts from province to province are about any infringement between anybody. Not just government. But only to do with discrimination.  Example Cases:  R. v Morgentaler: in England abortion was criminalized, the women served 7 years in prison and the doctor served lifetime in prison. When this was brought over to Canada abortion was only allowed if deemed 'medically necessary' up until 1969, when doctors lobbied for legality through a committee deciding if it was medically necessary or not. Morgentaler (70's & 80's charged) violated the committee by performing notions command in clinics. Charter came to be and hit lawyer argued that the section in the criminal Coe is unconstitutional. th September 17 , 2012  Natural law:  Legal positivism:  Legal realism:  Feminism: That discrimination is systemic (not on purpose) and systematic (purposefully)  Types of Feminism:  Liberal: everyone needs to be treated equally.  Integrative: you cannot treat everyone equal and therefore the outcome doesn't always end up the same. You would have to treat women different to get an equal outcome.  Radical: men dominate and that creates an imbalance in society women thus need to separate.  Socialist: oppression through finance and economic issues, economic classes.  Racial: women of colour and first-nation women's suffer additionally for race. INTERNATIONAL INFORMATION:  Universal Declaration of Human Rights: if we treat individual people this way we can thus avoid another WW2. Declaration isn't binding.  International Covenant on Economic, Social, & Cultural Rights, Canada signed in 1976, we refuse to pass/ratify a part of it because afraid of housing rights demanded to all Canadians.  International Covenant on Civil & Political Rights, Canada signed and embraces and it is more binding than economic/social/cultural one. This has optional protocol.  Anything on a national scale (Banks, Internet, Etc...) goes to the federal commission not provincial. DISCRIMINATION:  In the criminal code, if a murder/charge against someone is proven to also have to do with discrimination or racism the charge is harsher.  Each province has its own human rights act. Charter applies to government infringes, whereas the individual human rights acts from province to province are about any infringement between anybody. Not just government. But only to do with discrimination.  Discrimination is defined as unjust practice or behaviour whether intentional or not. It is based on race, religion, colour, gender, physically disability, mental disability, marital status, family status, source of income, age (In the human rights act age is counted as over 18, if you are a minor you cannot get help), ancestry, place of origin, sexual orientation, and it must include a negative effect on the individual or group.  Age is counted as over 18, so you cannot get help of you are a minor  84% of discrimination complaints are at the employer; 20% of discrimination to employer is about gender, 32% about physical disability, 16% about mental disability, 8% about race, and in future expected a rise in sexual orientation.  The complaint must be made within one year of the last incident. Remedies include: apology, education, re-hiring if fired, training, money ($5000-$7000 given, not a lot), if charged an offender can provide an excuse; like you cannot build a wheelchair ramp if it would make a company broke, so the government takes an extent of tolerance in mind.  Employment  S6: equal pay for equal value, only based on gender discrimination  S7: practices  S8: advertising  Can discriminate based on personality (in employers discretion)  Either sue employer through the business or on a personal term. Different cases. Bona Fide (BFOR) Right to discriminate in occupational requirements, for example you cannot hire someone visually impaired to be a bus driver. Direct Discrimination: no women can work at all Indirect Discrimination: no one under 6'2" can work. Bona Fide Occupational Requirement Test: 1. The purpose is rationally connected. 2. It was done in good faith, and not just because didn't want too. 3. Must prove it’s necessary and reasonably needed for performance of the job, and you cannot accommodate the person without undue hardship.  Courts definition of discrimination: it is a distinction whether intentional or not based on grounds relating to personal characteristics of the individual and/or group; and is intended to impose burdens, obligations, disadvantages, on such that are otherwise not imposed on others and which withholds or limits access to opportunities, benefits, and advantages available to other members of society. How to determine if the law is substantively discriminatory? If there is a pre-existing disadvantage Claim if discrimination is necessary  Systemic Discrimination (imbedded in society but not purposeful with intention) versus Systematic Discrimination (purposeful and intentionally doing so). Example Cases; A) Meieorin Case: firefighter case, not human rights but a labour case. She was a firefighter and then an aerobic test was made for all firefighters and she failed multiple times and was fired. Fought based on gender discrimination (women less aerobically fit) was reinstated case went to Supreme Court. B) Widows Pension: 5 women challenged it (Gwinner Case) caused the government of Alberta to cancel widows pension in 2012. C) Dr Lund battled a letter to the editor about the editor targeting gays. He had to battle out the difference between hate speech against a person or group causing contempt and someone's freedom of speech. Less than 1% of cases because of publication. D) Miller Case: was receiving aish/govt funding,
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