POL 224 Lec with midterm information Nov 21, 2012 .doc

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Political Science
Rodney Haddow

POL 224 Lec Nov 20, 2012 Midterm -focus on lecture, supplement with readings pertinent to lectures -core argument from course pack readings (author names) -content from beginning to next weeks lectures Canadian Charter (1982) -British parliament amends BNA act and grants Canada to make its own constitution -BNA and common law tradition in Canada -we formerly relied on common law -post 1982, written constitution -1960, Bill of rights -only applied to federal jurisdiction -not intrenched in constitution -ensured certain Canadian rights but were subject to courts -it was just one statute alongside other statutes, not above the others -one statute cannot override another -so we were still left to common law for the most part -Trudeau liberalism vs Quebec violations -pre-1960, Quebec was very catholic -padlock law prevented other religious sects from holding meetings -same with the communist groups -violations of the freedom of religion and thought -Trudeau hated these violations The Charter (1982) -Fundamental Freedoms (negative rights) (section 2): freedom of conscience, religion, belief, association -non-discretionary -effects both federal and provincial -not just a statute POL 224 Lec Nov 20, 2012 -Democratic Rights (positive rights) (s. 3-5): vote, elections -ensures the right to have an election every 5 years -Mobility Rights (s. 6): enter, move within, and leave Canada; economically disadvan- taged provincial are an exception -Legal Rights (s. 7-14) life livberty and security of the person -right to not be detained for an unreasonable amount of time -not subject to cruel and unusual punishment -unreasonable search and seizure -Language Rights (s. 16-23): -official bilingualism (federal and New Brunswick) (now official; 1969-1982 it was just a statute) -minority education rights if educated in this language in Canada (Canada Clause) -catholics in Ontario, protestants in Quebec -Equality Rights (s 15 and 28): -section 15: equal protection and benefit of the law but gov ay assist disad- vantaged individuals or groups -ex. Ontario creates a minority early education program in a particular part of Toronto -section 28: rights guaranteed equally to male and female persons -important even though it is somewhat reiterating other gender sections of the charter -feminist movement in Canada at the time had major sway -Section 33 (Notwithstanding Clause) -statute may expressly override sections 2 or 7-15 -feminist movement was so strong that in the 1988 there was a campaign debate that only asked questions about women during the campaign -women got a higher level of security by having section 28 included and not being touched by section 33 -statute lapses after 5 years POL 224 Lec Nov 20, 2012 -Trudeau’s gamble was that in the end people won’t use this -political compromise because the opposition opposed the charter -turned out to be mostly true -Section 1 (reasonable limits Clause) -all rights guaranteed are subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society -paradox: US has no section 33 but Canadian Supreme Court now more activist -we have limits that Americans don’t have but the Canadian courts are more activist than American ones -willingness to use the constitution to override government legislature -these are the clauses of the Charter, if a statute abuses it, we’ll put it down The Courts -if a statute violates civil rights, its put down -British tradition of common law -1982, comes the entrenched legal document -has the supreme court been consistent? -not necessarily bound by your own precedents -other than a few cases like the right to form a union, its been mostly consistent -Fundamental Freedoms -Big M Drug Mart (1985): Lord’s Day Act violates freedom of Religion -stores in Ontario didn’t want to be forced to stay closed on Sundays -only a Christian norm -Edwards Books and Art (1986): but day of rest legislation is legitimate -supreme court said its fine since it doesn’t explicitly refer to religion -government wanted to protect family values with one day off -Ford vs Quebec (1988): banning english on signs violates freedom of expression but PQ used section 33 -guy had english and french on his store sign -Ford found guilty in Quebec -not a language rights issue, does not involve public signs or education POL 224 Lec Nov 20, 2012 -freedom of expression is being violated (section 2; not subject to notwithstanding clause) -went to supreme court -when constitution was passed in 1982, big fight -Trudeau left power but then returned -only new brunswick and Ontario were agreeing without the the notwithstanding clause -everyone else said no; had demands -Trudeau went straight to London and asked the Queen to sign it anyway -everyone else said he couldn’t do it; supreme court said he needed a con- sensus, not necessarily from all 10 but definitely not from just 2 provinces -all agree except Quebec -Queen signed it and everyone was subject to it especially Quebec because they never actually agreed to it -today Quebecers like the charter as much as anyone else -Supreme Court did not let Quebec deny Ford his right to expression -however they later passed a law saying both languages can be used but French has to be predominant on the sign after several 5 year lapses -Keegstra (1990): CC provision against willful promotion of hatred is valid section 1 -provision in the crimial code that denies people the right to engage in willful pro- motion of hatred -Keegstra was a teacher t
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