Law Midterm Study Sheet
Primary Sources of Law:
3) Common Law
Secondary Sources of Law:
2) Encyclopedia’s of Law
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.
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.
September 17 , 2012
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
Racial: women of colour and first-nation women's suffer additionally for
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
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.
S6: equal pay for equal value, only based on gender discrimination
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).
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,