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3136 Mid-term Study Guide

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York University
Political Science
POLS 3136
Ray Bazowski

Study Guide for POLS 3136 MidTerm Terms and concepts: o Negative and positive liberties: “negative” liberties are designed to protect us from the government (for ex. Freedom of religion, government needs to back off and let the people enjoy the religion they choose for themselves). “Positive” liberties are the ones that allow us to demand from government certain things (s.23 – minority language education rights) the state has to provide schools in both English and French. o J.S. Mill’s harm principle: That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self- protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. It was suggested to use the “harm” principle as a line for limiting our liberties, which means that whatever we do should not “harm” anybody else. (however, later it turned out that the term “harm” turned out to be too vague to define the limits) o Common Law protections for civil liberties: 1) strict attention to the rule of law in Entick v. Carrington(1765) – each official act must be justified by law. 2) mens rea (or guilty mind) is a necessary aspect of statutory offences 3) the Crown is required to prove guilt beyond reasonable doubt 4) only freely obtained confessions are admissible 5) nobody can be forced to self-incriminate. 6) availability of remedies to citizens injured by illegal official action (“prerogative writs”, for example habeas corpus – the most famous writ to determine the ligality of imprisonment) o “small bill of rights” - S. 133 of BNA Act: Eng or Fr in Parl, Quebec leg., and Can & fed courts; similar guarantees in Manitoba in 1870, & AB and Sask in 1905 •S. 93: safeguards existing denominational school rights o Legislative Surprimacy: •Preamble to BNA Act: Canada’s constitution “similar in principle” to that of the U.K. •legislative supremacy one aspect of U.K. constitution: seems to contradict idea of a constitutional bill of rights •A.V. Dicey: Introduction to the Study of the Law of the Constitution (1885) •human rights protected by common law •written constitution is too rigid; trust legislature o Canadian Bill of Rights – was spearheaded and enacted by pm John Diefenbaker in 1960 as an ordinary statute of federal Parliament and was made applicable only to federal laws. o Duff doctrine: because Can. const is “similar in principle” to that of U.K., courts can strike down legislation violating trad. human rights.(weak argument because UK doesn't have a written constitution) Also, Canada is a democracy: H of C is representative. “Free public discussion … is the breath of life for parliamentary institutions” o Limitations Clause: first section of the Charter - “the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (provides reasonable limits to the rights provided by the charter so people don't abuse the rights guaranteed by it) o Application Clauses: s.32(1) – the purpose of the section is to make it clear that the charter only applies to governments (at all levels), and not to private individuals, businesses or other organizations. s. 24 – enforcement clause (remedies), 33 – notwithstanding clause, 1- limitations clause o Interpretation clauses – is designed to give courts guidelines on how charter is to be interpreted in specific cases. s. 25 – aboriginal rights (not to be abridged), 26 – other rights and freedoms not affected by the charter. 27 – multicultural heritage. 28 – equal rights male and female, 29 – denominational school rights not to be affected o Notwithstanding clause – s.33 grants the government an authority to enact laws notwithstanding a provision included in section 2 or sections 7-15 of the Charter. The act would have a maximum life of 5 years; after that a declaration could be re-enacted if the government wishes to continue limiting the particular Charter right. o Affirmative action – s.15(2) of the charter allows for certain laws or programs that favour disadvantaged individuals or groups (benefits received by minorities are not to be considered as discrimination). o Purposive interpretation of the Charter rights – involves an attempt to ascertain the purpose of each charter right, and then to interpret the right so as to include activity that comes within the purpose and exclude activity that does not. The effect of a purposive approach is normally going to be to narrow the scope of the right. o Minority Language Education Rights – section 23 confers up upon “citizens of Canada” who are members of the English-speaking minority in Quebec or the French-speaking minority in the other provinces “the right to have their children receive primary and secondary school instruction in [the minority] language in the province”. The right is granted to the children whose parents fit one of three categories established by s.23 – 1) the mother tongue of the parent 23.1(a); 2) the language of primary school instruction in Canada of the parent 23.1(b); 3) the language instructions in Canada of one child of of the parent 23.2 • 23.1(a) does not apply in Quebec by virtue of s.
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