POLA51 Brooks Chapter 6

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23 Apr 2012
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POLA51 Brooks Chapter 6
Entitlements: What might be called social rights of citizenship, such as public education,
pensions, welfare, and various forms of assistance for those in need.
-Civil liberties or civil rights are terms sometimes used to refer to all the basic rights and
freedoms of citizens.
Universal Declaration of Human Rights: Declaration passed by the UN in 1948 that provides
the basis for various international covenants to which Canada is a signatory
-Political Rights/Fundamental Freedoms. These include freedom of association, assembly,
expression, the media conscience, and religion, and the right to privacy
-Democratic Rights. Among these are the rights of all adult persons to vote and stand for public
office. Requirements that elections periodically be held and that the law apply equally to those
who govern and those who are governed are also important democratic rights.
-Legal Rights. These are essentially procedural rights intended to ensure the fair and equal
treatment of individuals under the law. They include inter alia, the right to due process of law,
freedom from arbitrary arrest, the right to a fair hearing, the right to legal counsel, and the right
not to be subject of cruel and unusual punishment.
-Economic Rights. Although they usually are not listed as a separate category of entrenched
rights, economic rights occupy an important place in all capitalists’ democracies. They include
the right to own property and not to be deprived of it without fair compensation, the right to
withhold ones labour, and freedom of contract.
-Equality Rights. This is the most recent and probably the most controversial category of rights,
The American Constitution, the first modern constitution to include an entrenched guarantee of
equality rights, refers only to every person’s right to ‘equal protection of the laws’. The more
recent tendency, however has been to enumerate the proscribed bases of legal discrimination,
such as race, religion, ethnicity, gender, and age. Canada’s Charter also includes mental or
physical disability and has been interpreted by the courts to prohibit discrimination
-Unions have argued that collective bargaining is a right that belongs to working people. They
have claimed (successfully) that it should be implied by and protected under section 2(d) of the
Charter (freedom of association)
-Supreme Court of Canada has declared on a number of occasions that the Charter does not
include economic and property rights. Business’s efforts to find some protection for property
rights in the Charters guarantee of security of the person (s.7) have been expressly rejected by
the court.
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-Legalized politics inevitably favors established interests and serves to reinforce that status quo
because of what he and other critics claim to be biases built into the law and the legal/judicial
profession.
On the Origins and Meanings of Rights
-Rights come from political struggles
-Political struggle is a necessary condition for rights claim. To be recognized as legitimate, a
rights claim must be successfully linked to one or more of a society’s fundamental values.
-Beginning of the 1970s, Morgentaler was involved in a number of court cases where he was
charged with violating section 251 of the Criminal Code, which placed limits on a woman’s
access to abortion.
-He was acquitted by juries on a number of separate occasions, each time successfully invoking
the ‘defence of necessity’.
This is a common-law principle that, applied to a medical procedure, provides immunity
from criminal prosecution if the procedure is necessary to save the life of the patient.
-In 1983, Morgentaler’s lawyers argued that Canada’s existing abortion law violated a long list
of rights and freedoms that the Charter had entrenched in Canada’s Constitution which included
freedom of conscience and expression, the rights to life, liberty, and security of the person; and
the right not to be subjected to cruel and unusual punishment.
-Canada’s abortion law was eventually ruled unconstitutional by a 1987 Supreme Court decision
in which the majority ruled that it violated security of the person.
Rights and Their Protection
-During the 1980-1 debate on constitutional reform, critics of an entrenched charter of rights
warned that entrenchment would lead to the Americanization of Canadian politics.
-Two main aspects: one involves a more prominent policy role for unelected judges, and a
related decline in the status of elected legislatures. The other is an increase in recourse to the
courts to solve political disputes.
The Pre-Charter Era
Ultra Vires: ‘beyond its strength’. A judicial ruling of ultra vires means that a legislative act is
beyond or outside the constitutional power or authority of that legislature; in contrast, an ‘intra
vires’ is a judicial ruling meaning that the legislature has acted within its constitutional
competence
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