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LWSO 335 Study Guide - Midterm Guide: Canadian Charter Of Rights And Freedoms, Wheelchair Ramp, Legal Realism


Department
Law and Society
Course Code
LWSO 335
Professor
Linda Mc Kay- Panos
Study Guide
Midterm

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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?

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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.
September 17th, 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.
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