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Charter of Rights and Freedom Study Notes (2).docx

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Social Science
SOSC 3360
Jonathan Rudin

Charter of Rights and Freedom Study Notes Bork • majority tyranny --> when the majority forces the minority to do things they are not allow to • Minority Tyranny --> minority prevent the majority from doing some things • Original Intent --> if you don't know what the original intent is then you do nothing - if you think that people should have a right of privacy then you amend the constitution if it's not in there then it never was and you cannot denied the legislation • Problem with Judicial Review is that power is given to unelected people - Judges - they can decide when they want to intervene Motor Vehicle reference • In British Colombia - person who drives a motor vehicle without a licence is subject to a fine for 7 days max at first offence - but people don’t know when their licence is suspended o They wanted to pass the law so they didn’t care if people knew their licence was suspended • Bickle • Thinks that there is an importance of the supreme court and its ability to strike down and uphold legislation • Government makes sounder decisions b/c the work needed to convince the majority to support your point is better than a decision made based on morality • Judicial review (JR) weakens the democratic process because it give unelected people power to make laws and suggest there are concerns about the democratic system o JR also encourages legislation to make popular decisions b/c they know courts will just fix it later • Legislature deals with immediate concerns – deals with the problem right now and does not look to the long term consequences o Courts have the luxury of time to examine and take another look – court decisions can take up to a year Dworkin • Trample on the rights of minority – These points is saying that it is better to let the majority decide --> but Dworkin is concern that some ppl that will always be on the losing end i.e. prisoners - this isn’t fair because the majority doesn’t care about the people o Majority will usually infringe on the rights of minority so it will not be fair • Taking Rights Seriously - people have moral rights against the state --> they are rooted in the constitution i.e. everyone child has a right to a education even if the community suffers o Individual rights should not be sacrificed even for the greater good --> this is how to take rights seriously o Constitution is vague so the judges can make their own decision --> Dworkin said they are not vague, they are only vague if judges look at the constitution for exactly what to do  The constitution sets out concepts and not the conception of those concepts I.e. Fairness John Hart Ely • Came up with a theory that looks at the process at which laws are enacted • Process oriented approach of Judicial review --> not the substance or a law made by legislation that infringed on the constitution but by the process at which the decision was made by o Ely theory starts by saying the political process to lead the case - but sometimes the political process fails and sometimes it fails because of prejudice to minorities o referee analogy --> the referee only intervenes when one team has an unfair advantage over the other, not when the wrong team is scoring  Only intervene when sometime is wrong with the rules not to give an advantage to one team o Judges can look at legislature and see if the process was fair and not impose their own will • How do we know if the process is fair? o Look at if there is a flaw with a law i.e. it’s flawed if some people are not allowed to vote --> the political process is more important than just voting though- people who vote don't have all the power  • Discrete (unique) insular minority - Those who have no access to the political process o We have to be concern if there are groups who have no access political process  Aliens fall into this category --> people who live in the US or Canada but does not have citizenship and cannot vote  When legislature makes law that type of people have no influence because they cannot vote • Systemic discrimination - Simpson Sears Case - Sear had a policy where if employee started working there they had to work Friday and Saturday - there was no discrimination in this - but it turns out that this rule has an undue impact of people who's days of worship was Saturday and Friday • According to Ellie laws about aliens would be subjected to scrutiny because they cannot vote - has to keep legislation about them in check • Laws always targets people i.e. Criminal law targets people who commits crimes - not discrimination o Laws that target racial group cannot be justified - people have no choice about what race they are o There is prejudice here and prejudice is based and thrives on stereotypes o Not all stereotypes are as problematic as others • 3 types of legislation 1. They They legislation - commercial legislation where legislators have no stereotypes --> not motivated by stereotypical views, just doing what they do 1. We We legislation - legislation that applies to everyone equally 1. We They Legislation - We being legislators - these laws are made by legislators about a group they have very little information about • The third type is the one that we should be concern about - this is the type of legislation that will lead to legislature that discriminate against the other groups o i.e. a law about aliens runs into prejudice about a discrete and insular minority o These laws are the most suspect • Critique 1. This is a process oriented review 1. Ellie talks about the fact that we should be careful of law that’s discriminate based in: poverty a. Elly theory doesn't really target poor people - only the liberal democratic state 1. The classification process isn’t as easy as it seems a. Ellie said we shouldn`t worry about cases about young people but Old people now are not sympathetic to young people - we have stereotypes about people who are young or old - and people who pass legislation are neither young or old and there are prejudices - So this wouldn`t classify as we we legislation a. I.e. Ellie said that we shouldn`t worry about issues of pornography people the main users are men - so would pornography be we we legislation a. The problem occurs is that every issue could be considered we we or they they or we they legislation --> It goes back to the original idea of scrutiny Michael Mandel • Thinks constitution is bad for Canada • Reason over passion – people believes Courts are good b/c they have time to think about the decisions and they use reason over passion when making decisions o Mandel said this is not true – there are actually more bad decisions made by the courts o i.e. Koramatsu case was in US SC and they upheld their interment - government had to apologizes for this afterwards o Macarthy case about communist case wasn't strike down by SC o These cases were badly done and were decided by fear and hatred • Courts do not actually lead to change, there is no enforcement ability and it takes a long time before a decision is made o in the US SC in Brown (2) order the Topica school board to see if they desegregated yet - took 25years and still didn’t desegregate yet • Another problem is that the Charter is an individual rights documents - it protects the individual from the government and that is the problem o Doesn’t recognize collective rights - individual rights triumphs the collective rights o Protection of corporations freedom of speech trumps collective rights of people • Justice is blind - Mandel said this makes justice blind to the fact that there are power imbalances - ignoring this is not a virtue, it's a problem o Only by ignoring the other facts of concrete power can they do their job properly - justice doesn't always follow the strong i.e. it's like a prize fight where the referee doesn't care about the weight class but just that none of them cheats o Mandel said Justice usually privileges power - corporations who spend a lot of money to tell thing that is wrong - this allows those with power to get more power and laws that tries to limit this power (collective rights ) is usually struck down  I.e. RJR Reynolds corporation challenges the legislation that doesn’t allow to advertise cigarettes - said it violates their freedom of speech • Mandel said this isn’t good: this is sacrificing collective rights for individual rights, this is taking a conservative process, we give rights to corporation, we give them more power because they can make more cases • Another problem is Judges just make law based on precedents - can't make political arguments - has to make legal arguments that has nothing to do with the political issue o i.e. Operation dismantle • 3 Problems 1. Some people will never have political power - they will never be able to challenge laws that violate their rights i.e. prisoners 2. There are cases where people have won and the charter has given people rights - i.e. Charter rights took away legislation that takes always prisoners right to vote - there are many victories in criminal rights 3. The courts are looking more at collective rights and what is reasonable in free and democratic society - Corporations have gotten more rights and used their power to stop government from dealing with corporate activity - but the courts don't ignore collective agreements Oakes • It told us what is section 1 and what it means o Proved on a balance of probability • Oakes 2 Part test 1. Objective must be of sufficient importance to override a charter right - Pressing and substantive objective a. Crown has to show why this is being done 1. Proportionality Test a. Rational connection test - has to be a rational connection between the objective being sought to achieve and the law a. Minimal impairment - restrict liberty as little as possible - is there another way to accomplish the objective a. Effects test -?? Eric Barendt – Freedom of Speech • Speech is understood though 3 different perspective 1. Of the speaker - speaker who wants to speak 1. Audience - want to hear the speaker 1. General public - interest is different from the speaker and the audience i. No interest in what the speaker is saying or the audience but they just happen to be there and hear it 1. I.e. In a car with big speakers the music is the speaker, the people listening to the music is the audience and the person who is just nearby is the general public 2. Sometime the theory prefer one of these groups over the other • Barendt 3 theory of Speech 1. John Steward Mill argument of truth o Harm Principle - of it doesn’t hurt anyone else then we should be able to do it • The state doesn't always know what is true i.e. they might think X is true but they could be wrong o Critique • The state wants to keep hate down - there can be serious conflict if people are allowed to continue hate speech • People can start believing in the false statements – Propaganda 2. Self Fulfillment o We allow people to speak b/c it helps them develop as a person – the more we allow people to speak the more information we get i.e. commercials allow us to be better informed o Negative Rights Documents – the charter only prevents the state from taking away our rights , it doesn't force the state to provide any new rights or benefits – those are positive rights 3. Democracy – we allow some speech and deny other o We can restrict speech that is no political issues o As long as there is a democratic debate about it then it can be banned or people can give reasons on why it shouldn't be banned o The more effect that it has on the general public then the more it is likely to be restricted • i.e. a Nazi march effects the whole community while one person shouting only effects those around them o Critique – what is a political party runs on hate speech Medjuck • Freedom of Expression for the preservation of democracy – freedom of expression not only protects individual rights but also the rights of ethnic groups and the minority o Freedom of expression allows individuals to express themselves but only to the point where they are not promoting hate against other ethnic groups and minorities Roach • Dialogue - communication btw courts and legislation about what they want to do • When courts strike it down and send it back to the legislation, they get to fix it • Likes the use of section 33 o Everyone knows the law is unconstitutional and the legislature still wants to pass the law and if the people care they will let legislature know - the benefit of this is the courts doesn’t have keep looking at how the legislature can fix it - courts doesn’t have to twist itself to figure out how it can work o Dialogue is also used in Suspended Declaration of Invalidity - it tells legislature what is wrong but they will not strike it down until 6 months later and they will strike it down for sure • Legislature always fixes this problem though - they never have to use the 6 months • In this case the courts doesn’t know how to fix it but gives their idea on how to fix it • Roach said the idea of dialogue takes away some fear of judicial review - courts and legislature are able to negotiate - but dialogue doesn’t justify judicial review • Roach mentions that if we look at the Charter, it is used mostly by people without much support in legislature - they have no other place to turn • Charter grants people procedural rights - the fact that police can’t beat people to confession - before procedural rights police can do w/e they want o Procedural rights is a good thing o • Section 33 Notwithstanding Clause • Legislature may expressly declare that they act or prevision may act notwithstanding provision 2, 7 etc of the Charter • Legislature can pass laws that take away Charter rights - but they have to say notwithstanding charter rights they are going to do this o Wasn’t originally in Charter - provinces all feared that there was going to be a problem in the courts o Province said they want a option to deal with an uncontrolled SCC • Concern that the PM is going to promote ppl who share their ideas in the SCC • Notwithstanding only work for 5 years, after 5 years it goes away or legislature must reintroduce the piece of legislation o Pierre Trudeau believes that government will be punish after they use it - no one has actually used the Notwithstanding clause Cases Irwin Toy v. Quebec – What is covered by Freedom of Expression • Case about preventing companies to advertise to small children in Quebec o It violated section 2(b) rights but was justified under sec 1. • Importance of the case: backs up the idea of "Self fulfilment" • The Justices considered the rationale of the freedom of expression provision and enumerated three grounds 1. seeking and attaining the truth is an inherently good activity; 2. participation in social and political decision-making is to be fostered and encouraged; and 3. the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed. Kegstra Case – Hate Speech 1. Deals with hate speech - Kegstra promotes hate speech against Jews 2. Deals with if restricting hate speech is allowed under section 1 of the Charter • Keegstra's appeal ultimately reached the Supreme Court of Canada, in the case of R. v. Keegstra. In December 1990, the Court upheld Keegstra's conviction, ruling that the law's prohibition of hate propaganda and suppression of Keegstra's freedom of expression was constitutional. The majority of Justices looked at hate speech as not being a victimless crime, but instead having the potential for psychological harm, degradation, humiliation, and a risk of violence. 3. This case was about Kegstra who was a high school teacher but was fired in 1982 --> in 1984 he was charged with unlawfully promoting hatred against Jews 4. Kegstra taught his course and attributed many evils to Jew --> said they were responsible for many evils and created the holocaust to gain sympathy --> Kegstra forced students to represent/regurgitate his idea in class and if they didn't their marks suffered Ross Case – Freedom of Expression and influential people (teacher) Ross Case • Ross is about a teacher who is an anti Semite who teach in New Brunswick • He teaches math in grade school and is anti Semite - he wrote books and made appearances on television to say that Jewish conspiracy is undermining and destroying Christian Society • He was fired but reinstate as a AV guy as long as he never wrote another book --> Ross said this was an infringement of his freedom of speech • The courts said that this was dealing with young children which are vulnerable to comments made by their teachers and they can't distinguish between truth and lies o The courts said telling him that he couldn't teach is ok but they struck down the fact that he can't publish or be fired --> if he isn't a teacher anymore then he loses the authority of being a teacher • Teachers are role models and this cases sets up how much the courts can regulate the lives of the teacher outside of the school i.e. before Catholic teachers were seen as role models in the past and had to live s pure Catholic lifestyle of be fired Cohen Case – Ambiguous term for Fuck • Cohen was arrested for wearing a jacket that said "FUCK the Draft" and charged with disturbing the peace • Offensive content was described as "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace" o US SC found was that it was freedom of expression - The term "Fuck" could mean anything Black v. Virginia – Cross Burning hate v.s. Freedom of Speech • Three defendant were charged with cross burning in the US o The US SC found that banning Cross burning is unconstitutional but Cross burning with the intent to intimidate is not • Justice Thomas dissent - said that it effected different people differently o It effects blacks/ African American are afraid of that conduct - white people can't experience is personally - they don’t know what this kind of symbolism differently 1. Unique values in Judges that still effects their decision 2. Burning of a cross means kill the black and nothing else - not open to debate for a black man NS Case – Charter right vs. Charter Right • NS was assaulted as a child by her uncle and cousin – her parents teachers, etc didn't do anything about it but now NS is taking actions • NS wears a niqab and MDS MLS lawyer said that they needed to see NS face when testifying and said her wearing it is a violation of their sec 11(d) and 7 – NS said forcing her to remove it is a violation of sec 2 rights o demeanor is used to assess the creditability of the witness and it restricts the non verbal communication - people are watching to see the witness – needed for a fair trial o The Criminal Lawyer Association said this will lead to many problems - how far would the courts go to accommodate that belief i.e. All jews would be kicked out it someone's belief is that no judge should be allowed in the court room • Court reasons on why she should - Said it is important to women equality by allowing her to wear her veil and it is important to getting the truths - she would not be herself because of not wearing the veil and people might misread her demeanor or she might just drop the case • Courts reason on why she shouldn't - trials are public if she testify with the veil people might think of this as an unfair advantage • The courts said if there is no compromise (reconciliation, compromising, study, etc) then the witnesses rights must yield and SCC said that they do not want to convict an innocent person • Take case by case cannot have a general rule that say if it's legal rights against religious rights legal rights win o No general rule Daviault Case – No Mens Reas and communication btw courts and parliament • Daviault was a recovering alcoholic who delivered some alcohol to an elderly women and she gave him some – he got drunk and she claims he raped him – Daviault claimed he blacked out and entered in a state of autonomy • Justice Corry and the majority talks about the Leary case where self induced intoxication should not be a defence or else everyone would use this defence • Critics of Leary said it takes the voluntary act (decision to become intoxicated) and substitute it for the mens reas - when you choose to drink alcohol then whatever people do after that is their own fault • The Leary rule violates section 7 o The court said this doesn't make drunkenness a defence to a criminal charge - drunkenness to the point where they can't have an intent of decision making is a defence • Corry said there are country that allows these defence i.e. Australia o The study in AU shows that the blackout defence was only use in 2.16% of cases and only 3 acquittals o Corry said this will not open a flood gate because it hasn't done so in AU and speaks to parliament and says it will only be on rare occasions and even more rare occasion that it will be successful  Corry said for parliament to create a new criminal offence to make it an offence that people cannot get themselves so drunk that they enter a blackout state to commit crimes  Parliament did not listen to Corry - passes a new section of the criminal code that it is not a defence for self intoxication - same law that was struck down Motor Vehicle Reference – Absolute Liability Offence • Made it illegal for people to have an expired driver license whether they know it or not – this is an Absolute Liability offence – no defence against it o What is the impact of an Absolute liability offences that violates someone rights to life, liberty and security of the person 1. Courts said absolute liability offences can stand only if they do not violates someone's life, liberty and the security of the person 2. This was the case in the MVR because people's liberty are going to be deprived because they faced imprisonment and therefore the courts found that imprisonment and absolute violates section 7 of the Charter o Courts said this was a fair issue but innocent people will go to jail - courts said that is not a risk they should take - Principles of Fundamental Justice (PoFJ) said people should not be jailed for a crime they did not intend to commit Charkaoui Case – Security Certificate and communication btw courts and parliament • Charkaoui was detained because of a security certificate that was issued to him and he doesn't know why – he can't see any of the evidence against him because it's classified • Argues the Information and Refugee Protection Act (IRPA) violates sections 7,10, 12 and 15 of the Charter • Issue: gov has to keep the security of the citizens and can act on information that they do not have to reveal • The problem in the IRPA is it is hard to have an adversarial system if they can't see the evidence against them - the judge doesn't have the power to ask for evidence only receive • Court finds the law unconstitutional - if the law is struck down though that means there is not anti terrorism law o Suspended Declaration of Invalidity - Suspend invalidity for one year so that legislation can draft new laws or else if this law is struck down then everyone would be free - Feb 23 2007 • Oct 22 new legislation was introduced to amend immigration ??? - new legislation created the position of a special advocate - SA can challenge all information and access to all information o Can't communicate with anyone once they see the information Suresh Case – Security and cancel PoFJ • 2002 SCC case where Suresh was an immigrant in Canada - Canadian government was seeking to deport him because he arrived under false pretenses o Thought he was a terrorist and wanted to deport him to Sri Lanka • Suresh said he is not a terrorist and said that Sri Lanka would tortured o can't deport people to torture because of Burns and Rafay - vio lates section 7 • Para 54 SCC said that Burns and Rafay cases applies here as well and cannot deport him • If they can show that they would be tortured and tortured violates fpoj and if the government's involvement would lead to this then the Moj can't deport them to torture o B
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