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Charter Test Open Book Notes.docx

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York University
Social Science
SOSC 3360
Jonathan Rudin

09.16.13 - History September 16, 2013 4:35 PM • Charter 1982 • Canada has 2 branches of government o Federal and Provincial • British Parliament passed the BNA of 1867 o Powers of federal government under the act • Immigration • Military • Criminal Law • Taxation • Patents and Trademark • Tariffs • Money • Postal Service (Canada Post) • Census • Bank • Aboriginals and lands reserved • Divorce • Residual Powers • P.O.G.G. - Peace order and good government o Powers of Federal government • Education • Healthcare • Property and civil rights • Transportation • Fines Judicial Review • Until 1960 these cases were about who had the right to do what o Division of powers o Section 91/92 o Debates between Prov and Fed about topics such as highway acts, telecommunications • Decided in courts Bill of Rights • Not entrenched, just statute Charter 1982 Dialogue (courts and legislature communicate) 09.23.13 September 23, 2013 4:36 PM US Constitution • 14th amendment - the state shall not deprive any person of life, liberty, property without due process of the law NOR can it deny any person within its jurisdictions the equal protection of the law… (see recording) o Due process though to be procedural rules and fairness o Not actually defined • Early nineteenth hundred (1905) problems began to arise o Against the law for someone to work in a bakery for more than 10 hours a day or 60 hours a week • Man was fined for allowing worker to work more than 60 hours a week  Argued that this deprived he and his workers liberty • Substantive due process - when you look at the substance of the law does it interfere in the individuals liberty Grizzwald (Connecticut) • Planned parenthood case o Anyone who takes a drug which purpose is to be a contraception • Includes parties who aid and abet them in this crime charged as principle crime • Grizzwald and Lochner Cases were test cases o Only way to challenge a law is to be charged with in in court • Supreme court states that they are not in place to be quasi legislature o Penumbra - Not part of the object but around the object Brown vs. Board of Education • Wanted to be able to choose what school he can send his kids to • Despite the separate but equal model, can it be seen that there is an effect on the quality of education when education is mentioned Robert Bork (Reading) Page 3 • The issue of having a constitution that the courts apply to the legislature o Live in a democratic state but are willing to have a non-democratic system make these decisions • What is it that the court is supposed to do and on what basis should they do them? Page 6 • A legitimate court must… • Not up to the court to find the fundamental values of the constitution Page 11 • Substantive due process is improper • Look to history to see what the framers intended it meant but not assume to know if it was not already known • Trouble with his argument was that when he was appointed to the supreme court BC Motor Vehicle Referrence • A person who drives a motor vehicle while he is not legally allowed to drive is sentenced to jail for 7 days o Guilt is established by proof of driving despite the fact they may not know or claim to know that their license has been suspended 09.24.13 - Tutorial 2 September 24, 2013 11:39 AM Judicial review •Authority is given to them by legal philosophy (3 listed above) Natural Law •Law that is universal and derives itself from the divine •Laws that apply to everyone everywhere at all times •Certain rights that are for everyone that is applicable through •How men and women should order their lives to maintain happiness in society • Aquinas outlined these principles most articulately •Natural law infused the actions of everyone in a society o Prudence o Justice o Temperance o Fortitude •Caused enlightenment to common folk and led to revolutions •Need to find ways as to how to apply these laws Immanuel Kant •PPP Program for Perpetual Peace •Late 1700's o People began to turn their minds towards finding the best ways of governance o Best way was a republican government (liberal democracy) o Protects the people by law from the power of the state (arbitrary exercise of power) • Constitution/Reichstadt • Freedom of all men (women excluded in historical context, but inclusive for our context) • All people are equal • These free and equal people all agree amongst each other to submit to the rule of law o International peace only possible between nations that abide by these notions o US, Canadian, French constitutions influenced o 3rd tenet of R is what give the right of Judicial Review How should Judicial Review be Exercised? Bork •Judges can't impose his own moral values or personal o Bork says use the theory of originalism and look back to the authors to see what they meant in their writing of the constitution • Federalist Papers • Wording of the constitution •Bork admits that some of the wording is vague • Looks for a neutral principle in the law or connection to the constitution o If none is found then there is no infringement under the constitution 10.01.13 - Tutorial October 1, 2013 11:38 AM Natural law theory • Gutenbreg print press in the 15-1600's Positivism • Hobbes o Leviathan o Social Contract • All act as they would against others in order to preserve themselves • Based on the philosophical concept of 'permission' o Comes from the sovereign • Means that all the laws by the sovereign re valid, despite their moral content • Separation of law and morality • Bentham • Austin Legal Interpretivism • HLA Hart • Dworkin Judicial Review • 'Sober Second Thought' • Mystic Function o Deference • Too much = lost legitimacy Bickel • Apologist for deference of judicial review 10.07.13 October 7, 2013 4:33 PM Judicial Review (Ely Reading) • Constitution is a process oriented document o Answer not provide, how to get answer is however • Scrutiny (order of importance/level of scrutiny given by the courts) o Race o National origin o Religion o Sex • Law treats everyone the same (draft example) but the circumstances made it that the law was applied unequally 'Case' • Obiter dicta 'it doesn't matter' o Legal theory based on footnote and the is part of said footnote • Usually we can trust the political process to resolve disputes but sometimes this process can fail o Because of prejudice against discrete and insular minorities • Courts good at understanding process • Judges as Referees o Refs intervene not when the scores are, only when one team is not playing by the rules o Not concerned with the outcome of the game, just with the fact that the rules are being followed • Default position is that the political system works • Used when o the 'Ins' are chocking of the possibility of political change o Ignorance to minority rights which are as a result of prejudice towards the race o Example, past election in US (Disenfranchising black votes) • How to address prejudice towards minorities o Sometimes it is not hard to see/find o Not easy to prove motivation o Need to find a way to figure out when prejudice has an effect on decisions • Aliens (anyone who is not an American citizen) o Do not have the right to vote o Courts need to employ particular scrutiny towards their policy involving aliens because of that fact • Blacks o Have had the vote but it is still relevant to think that there is still prejudice o This and the fact that there is a Black president is not enough to say that they do not suffer from prejudice from the gov't o Ppage 153 - Prejudice is a lens that distorts reality o Stereotypes - not all are problematic • Some are positive Challenges of Ely's Theory • These distinction are not always as clear as we think they are o We / us o Them / they o They - They o We - We o We - They 10.08.13 - Tutorial October 8, 2013 11:30 AM Watergate • Led to Richard Nixon's Resignation o Only one in US history • Bork was more towards deference to executive power o Stopped investigation when Nixon ordered it. • Ely says the role of the Judge is far more confined and should only intervene in limited circumstances o We - they prima facie discriminatory cases o Hands off approach 10.15.13 - Tutorial October 15, 2013 11:37 AM Mandel Reading • Article in Globe and mail dealing with Harper's appointed judges o He will be survived by most of these conservative Judges o Has had 6-7 picks of the nine current judges on the supreme court o Conservative interpretation of the charter for the next 10-20 years o Picking Judges that will defer to the parliament and will not overturn his governments laws o This will be one of the things that will be remembered as a main element of his 'reign' "Lasting conservative imprint" Judicial Deference vs. Judicial Activism (as a spectrum) • Dworkin at the end of the spectrum of Judicial Activism o Court is obliged to protect the insular and discrete minorities by intervening on laws that can be oppressive, not equal, or unconstitutional • Bork and Ely are at the Judicial deference end of the spectrum • Bickel more interested in the role the court plays in Judicial review o Sober second thought o Court has to be careful when they do intervene so it doesn’t shatter its credibility. • Has happened here in Canada • Mandel? o No faith in the charter • "sales job" • Created by political elites and interpreted by judicial elites o Left leaning professor o Only reliable recourse is the political process • Marist theory of people taking over the process Essay Prep Bork • Thinks it is deplorable that there is no theory and constitutional interpretation changes with personnel (1) • "an attempt to establish the necessity for theory"(1) • 2 parts o Neutral principles o Implications to problems The Supreme Court and the Demand for Principle Acrimonious - full of or displaying anger and resentment • Courts decisions made on principle over everything else (2) • Madisonian system, not completely democratic (2) o Not majoritorian • Ruling where its power is legitimate(3) o Society agrees to be ruled undemocratically in defined areas o Court power valid if it has a defined theory on minority and mojority spheres\ syllogism - a formal deductive argument made up of a major premise, a minor premise, and a conclusion. An example is, "All birds have feathers, penguins are birds, therefore penguins have feathers." i. The Supreme court should protect our consitutional rights and liberties ii. Must make fundemental value choices iii. "" • " a court that 'choses fundamental values' because a Court that makes rather than implements value choices cannot be squared with the presuppositions of a democratic society" (5) • "a legitimate Court must be controlled by principle exterior to the will of the Justices."(6) • Judicial defference (10) o 'courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in framing of the constitution. (10-11) • " ' are we all… at the mercy of legislative majorities?' The correct answer, where the constitution does not speak, must be 'yes'"(11) • Formal procedural equality Bickel - Counter Majoritarian Difficulty Aka Judicial Review • Weakness of the article includes the aforementioned fact that democratically voting has holes in the power give to a vote over time Acquiescence - agree or comply with something in a passive or reserved way. Truism - obvious statement • Idea that there are immediate and purposeful results from gov't action and also maybe unintended ones that are undesirable (5) o 'Permanent' and enduring values > voted politicians values Egalitarian - believing in quality Dworkin • Link between adjudication and constitutional theory • Nixons cannot just object on the basis that prior law is circumvented or that the court cannot change its mind (132) • Vague Standards 10.21.13 October 21, 2013 4:34 PM Mandel • Canadian • Doesn’t like the Charter • Thinks the idea of judicial review is stupid • Takes a left wing perspective in interpreting the charter o Explicitly political • Charter makes things worse for average Canadian o Gives more power to the powerful • The charter was SOLD to Canadians and it was sold as Judge's will not pick sides and will remain impartial case to case • Charter is not self-evident in presentation to Judges o Lots of interpretation room 10.22.13 - Tutorial October 22, 2013 11:34 AM Mandel • Thinks judicial review and chart is a croc, just a marketing deal • Only theorist to criticize the politics in this all • Politics protects the individual rights, not the charter • Deficiencies of the courts as charter (2) o Do not represent the majority of the people o The politics of Conservatism being the majority of the • The judges can't be expected to park their bias and experiences when deciding, they are HUMAN o Man or woman they have the same upbringing and socio-economic status o All are lawyers • The rule of LAWYERS rather than the rule of LAW • Better to rely on the political process • Lawyers and Judges bound by precedent • Legal profession is a very conservative one o Tend to defer too much, what the point then? o Cannot be relied upon to advance the right of the individual • Doesn’t put enough emphasis on the importance of social change 10.28.13 - Oakes October 28, 2013 4:33 PM Section 1 R. v. Oakes Stages of the Charter Claim •Bring charter claim under s2-15 o Courts can say no they have not been infringed and that just it ;OR o They can say yes then you go on to the next stage: • Section 1  If the court says that what has been done is justified then you lose  Unjustified, you win •Applicant has the onus of proving violation from section 2-15 •Gov't has the onus for section 1 •Political Genius o Can be told that rights have been infringed upon but still lose under section 1 Oakes Test •In the Oakes case they finally said to define how to interpret section 1 •Drug case • Reverse onus - the accused was assumed guilty and had to present evidence of his innocents or he would be found guilty •Free and Democratic Society o What are the overarching and holistic values of the charter •The test o Objective: is there a pressing and substantial objective to the impugned legislation o Proportionality: Is the limit on a constitutionally protected right i. Rationally connected to the objective (rational connection test) [in terms of a law] ii. At least impairment necessary to the achieve the objective (minimal impairment) [setting precedents and affecting a right as a whole] iii. In proportion to the objective (overall proportionality test) [attempt to not over-penalize] •Have to get through all of thee in order for charter case to go through 11.04.13 November 4, 2013 4:35 PM Freedom of expression • Should advertisement be protected by the charter? o Porn? o Nude lap dancing? o Hate Speech? • If any form of expression/speech should be found to be restricted there must be a meaningful reason as to why o Court cases will not be the place for this o theorists • 2 ways o Have a narrow definition of speech/expression • When you get to section 1 it can have the Oakes test applied to it easily o Broad and expansive notion • Anything the government come up with may fall victim of section 2b and have to be tested by Oakes • 3 people with interest in freedom of speech o Speaker o Listeners/audience o
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