Law Exam

Independant Judiciary

Independant Judiciary

Courts and judicial system are impartial. Judges are free to act without influence or control from executive and legislative branches. Not corrupted or influenced by other individuals, businesses or political groups. Protects the weak from the powerful; the minority from the majority; the poor from the rich, the citizens from excesses of government.

Lobby Groups

a number of people trying to influence legislature on behalf of a cause/interest

Intervenor

A person not originally a party to a suit who voluntarily enters into the action to protect some interest that he or she claims to have in the case.

Precedent

a judgment or decision of a court that is cited in a subsequent dispute as an example or analogy to justify deciding a similar case in the same manner

EXAMPLE: R v Lavallee

Civil Disobedience

public, non-violent breach of law with the aim of bringing about a change in laws or policies

**contradiction: acting non-violent to provoke violent response to attract publicity - gives power

this is so powerful because it creates a lose-lose situation for authority

Royal Commission

official Government (crown) inquiries into matters of national concern, either in order to look into an important general issue or to fully investigate a specific incident ex mmiw

Accepting the Results of Elections

In democratic elections, there are winners and losers. Losers in an election must accept the results of the election. Problem in the States

Control of the Abuse of Power

Corruption occurs when government officials use public funds for their own benefit or exercise power in an illegal manner. To protect against this abuse of power, democratic governments are often structured to limit power.

Accountability and Transparency

officials must make decisions and perform duties according to the wishes of who they represent, not for themselves people must be aware of the actions of the government for the government to be held accountable. Transparent governments hold public meetings, keep the press and people informed. ALSO trials are public.

Bill of Rights

List of citizens' rights and freedoms, limits power of government, states that freedoms are guaranteed and protects people from abuse of power of their government.

Political Tolerance

Democratic society strives for. The rights of minorities are protected. Those not in power must be allowed to organize and share opinions.

Citizen Participation

More than a right, it's a responsibility. Running for office, voting, becoming informed, attending community meetings, paying taxes, serving on jury, protesting. Builds stronger democracy.

Multi-Party Systems

More than one party participates in elections and plays a role in government. Provide different viewpoints, provide voters with choice.

The Rule of Law

All are equal before the law, entitled to equal protected of the law without discrimination.

No one is above the law, including elected officials, police and military.

Laws are enforced equally, fairly, consistently.

Free and Fair Elections

Elected officials are chosen by the people. Elections are held regularly. Most adult citizens have the right to vote and run for office regardless of race, gender, ethnicity and economic status. No obstacles to voting (intimidations, corruption or threats)

Equality and Human Rights

All individuals valued equally, equal opportunities and must not be discriminated against. Human rights of all are protected.

Economic Freedom

Government allows some private ownership of property and businesses. People are allowed to choose their own work and join unions.

Plato's Challenge

Good life - city - good city - justice, rich - richer on the backs of poor people - creates 2 cities = conflict Democracy will always result in tyranny

Is Democracy Simply Majority Rule?

Simple majority isn't what always encourages social change (Jim Crow, emancipation etc)

Tyranny

Oppressive government

"Modern Day Tyranny"

Greed, absence of awareness. Rule of money extended. Power given to markets rather than the people. Attacking people/democracy through economic means. Ex Greek's protest/referendum being overruled.

Meaning of Democracy

Power of the people

Dostoyevsky's Challenge

Is it not the case most people are afraid of freedom? want authority? rather be followers? Burden of freedom is too much?

Nominal Rights

On paper but not enforced.

R. v. Daviault (1994) and an indépendant justice system

• intoxication as a defence for sexual assault

• ruling accepted defence, but this is countered with the government’s Bill C-72 which denies this defence

• judicial system and the government act separately from each other

• • other intoxication cases changing law (the guy who killed his parents while drunk and on mushrooms

Case Law

Based on following previous judicial decision.

Statute Law

Laws passed by legislatures.

Crown (attorney)

Lawyer employed by the state to prosecute criminal offence.

R v Ewanchuk (1999) and the changing nature of the law

Ewanchuck charged with sexual assault, raises defence of "implied consent" because she didn't leave. Judge accepted defence and Ewanchuck was acquitted. Supreme Court found "implied consent" not a defence.

Demonstrates the changing legal definition of consent

Montreal Massacre (1989)

Gunman killed 14 women at Ecole Polytechnique. Coalition for Gun Control was formed, campaigned to change Canadian gun laws. Passed Firearms Act (1995) (mandatory weapons registration)

Should Society be Able to Overrule the Rights of Convicted Sex Offenders?

Yes: Keeping women and children safe and aware. No: Unfair sentencing targets marginalized (homeless), sex offenders are the least likely offenders to reoffend, they can't find housing, get a job, pushing re-offending.

Social Contract

An implicit agreement among the members of a society to cooperate for social benefits. How much are marginalized people willing to hold up the contract when it doesn't benefit them or outright harms them.

How Technology Changes Laws

Genetic Genealogy Testing. Filming.

How is Democracy Related to Law

Democracy: Voting representatives who shape law.

Does Law Shape Society?

Covid, environmental law.

Does Society Shape Law?

Women's vote, civil rights, abortion, First Nations police force in Saskatchewan, race, online hate legislation, genealogical and DNA testing

Case: Manitoba Language Rights (1985)

Manitoba's provincial laws only written in English, does this make them invalid? How does Manitoba govern until translation? Laws valid temporarily.

Legal Vaccuum

No laws.

Positive Laws

Written, have to be made.

Natural Laws

Come naturally, moral principles, present in many cultures.

Annexation:

Acquisition of one country's territory by another.

Louis Riel, the Creation of Manitoba and the Rule of Law

Government violated Rule of Law sending surveyors because they didn't legally own the land yet. Riel executed Scott, breaking British law.

How to Change Law

Protest, big events, organized action, lobbies. Court cases and precedents, court challenge. Ex Native Fishing Rights, Quebec secular law. Demographics, technology, values, emergencies.

Gerrymandering

Process of redrawing legislative boundaries for the purpose of benefiting a political party.

Legal Reform

Examining existing laws, and advocating and implementing changes in a legal system, usually with the aim of enhancing justice or efficiency.

Who has the power to make laws? Influence legal decisions?

Government makes laws. Influenced by their voters (values), lobbies, protests, individuals (court cases, precedents and court challenge)

How Have Society's Values Influenced Laws/Legal Thinking Recently?

Abortion, Covid, Weed (wholesale change in attitude)

Why is Judicial Independence Important?

Allows courts to make the best decision for the country, regardless of outside political influences Protects the weak from the powerful; the minority from the majority; the poor from the rich, citizens from government. Ex Canada's judges aren't allowed to hold office or participate in election campaigns

Formally the British North America Act

Gives french territories to England, meant for a colony, not a country Makes British North America Canada Becomes Constitution Act, 1867

Constitution Act 1982

The Act that made the constitution fully Canadian, added the Charter of Rights and Freedoms to the constitution, and established procedures for amending the constitution.

The role of government, as stated in the Constitution, is to...

U.S: Life liberty and the pursuit of happiness. Canada: Peace, order and good government.

s.1 of the Charter

• reasonable limits clause

• federal

• allows government to limit rights only to a point that is demonstrably justifiable

• example: jail (mobility rights), cigarette packages (expression)

To be reasonable, limited must be...

• pressing

• impair as little as possible

• be proportional to good achieved

s. 33 of the Charter

• notwithstanding clause

• allows provincial government to limit rights guaranteed in s. 2 and s. 7-15

• example: decline in the democratic characteristics of a political system

s. 91, Constitution Act (1867)

• outlines federal responsibilities

• example: defence, money, post office, unemployment insurance

s, 92, Constitution Act (1867)

• outlines provincial responsibilities

• example: education, healthcare

Canadian Bill of Rights

• first federal law to protect human rights and freedoms

• too limited and only applied on a federal level

• is superseded by the Canadian Charter of Rights and Freedoms in 1982, but still in effect

Charter of Rights and Freedoms

• broader and greater power (federal and provincial and is in the constitution) than the Bill of Rights

Charter and Bill of Rights are similar

• both include freedom of speech, travel, press, due process, privacy, assembly, an attorney etc

Canada's Amending Formula

• amendments must be accepted in federal parliament, the senate, and a minimum number of provinces

• this is important because Canada doesn't have to rely on the British to amend the Constitution

• also allows the country to keep the constitution up to date and representative of a change society

Ultra Vires

• outside of jurisdiction

• example healthcare to the federal government

Intra Vires

• within jurisdiction

• example education to the provincial government

Jurisdiction

power to make decisions or judgments legal authority

National Unity Crises: 1982

• P. Trudeau repatriates the Constitution (Charter Rights and Freedoms and the Constitution Act)

• QC wants special recognition in the constitution that they are a distinct society

National Unity Crisis: 1987

• Meech Lake Accord

• Proposals to amend the constitution would give QC recognition as a distinct society

National Unity Crisis: 1990

• Deadline to pass Meech Lake Accord

• Newfoundland holds out because they worry QC will gain more power

• Manitoba blocks passage because they want Indigenous peoples to have that same distinct society recognition

National Unity Crisis: 1993

• Charlottetown Accord

• Proposes distinct society status to Indigenous peoples and QC

• Referendums are conducted to pass it rather than trying to pass it in the 10 provinces

• It fails 40% yes.

• QC considers this a slap in the face.

National Unity Crisis: 1995

QC referendum fails **QC never passes/signs onto the constitution

Band Council

• Imposed by Indian Act

• Elected officials

• They say Yes to pipeline because it will result in money and jobs for the community

Hereditary Chiefs

• Title passed down

• Say No to pipeline to protect environment

Aboriginal Law

• Canadian laws that concern Indigenous issues

Indigenous Law

• traditional legal customs and practices

Federalism

• the division of power

• centralized: power centralized at higher levels (CA)

• decentralized: power spread out, lower levels with more power (US)

Society Safety Net

• Programs and initiatives put in place to support individuals and families who need support

• example: unemployment, free healthcare

Distinct Society Status

• recognizing a group as having separate culture, tradition, language and society

• example: QC

Smith, Alberta

• proposes sovereignty act to refuse to follow federal laws and court decisions that are deemed against Alberta's interest/constitution

Moe, Saskatchewan

• combative stance against what he sees as a federal overstep, climate change policies that will cost the province, into provincial jurisdiction over their development of oil and gas

Legault, Quebec

• wants QC to be separate and able to make decisions independently

Supreme Court

• Highest court

• appeal court that hears provincial and federal cases

• decisions become binding in lower courts

• decisions are final and cannot be overturned

9 Supreme Court Judges

• 3 from QC

• that's because QC has different civil law from France and the Supreme Court needs experts in that kind of law

• 3 from ON

• 1 from East

• 2 from West

• Must be representative of the country, language and minorities

When the Supreme Court agrees to hear a case

granting certiorari, or "cert"

Cases used to be able to be appealed all the way to..

Judicial Committee of the Privy Council in Britain

Person's Case: Edwards v A. G. of Canada (1930)

• women are considered persons only in terms of pains and penalties and not rights and privileges

• Emily Murphy becomes the first female judge in Edmonton

• Federal government is unable to appoint her the sent because only "qualified persons" can be

• In 1927, Murphy appeals to the Supreme Court through the Senate with five other women using s, 60 of the Supreme Court Act

• The question the Cabinet submits: Does the word "persons" in the BNAA include women?

• 1928: Supreme Court rules against the five

• 1929: JCPC in Britain rules in their favour

O'Bonsawin - SC

• Indigenous lawyer

• controversial: much less experienced than the justice she's replacing

Jamal - SC

• from Bay Street, finance lawyer

• pro bono work for immigrants

Significance of the entrenchment of rights in Canada's Constitution

• protects basic rights and freedoms

• protects citizens from breeches by the government

• only amended by formal amendment of the constitution

Reading down

Narrowing the interpretation given to legislation in order to prevent it from being declared unconstitutional

Striking down

rule a piece of legislation invalid because it's inconsistent with the charter

Appointing judges

• person at the top picks

• introduces appointer's bias

• example: Trump appointing justices at the end of his term which creates a conservative court

• perhaps not directly representative of the people

• judges with experience

Electing judges

• Judges outwardly push agenda

• campaign would undermine court's independence

• Supreme Court directly representing values of the people

Role of courts in defining, interpreting and enforcing charter rights

• Challenging law, forcing it to comply

• shaping and reflecting social values

• balancing legislators and the charter

• interpret charter to make decision

• enforce the charter by ensuring laws adhere

• define it by interpreting it and making decisions on its application in a real-life setting, define it's reach and authority

Judges must practice ___ years before federal appointment

10

R v Kirkpatrick (2022)

• sexual assault

• she consented to sex with a condom but he took it off the second time without her knowledge

• his initial acquittal is overturned by BC court of appeal and then the Supreme Court rules against him

Alaskan Panhandle

• Goldrush

• Great Britain wants to keep U.S as an ally and gives Alaska and BC coastline to them

• Canada doesn't have a say in their foreign affairs

Stand Your Ground

• Self defense law that allows deadly force when there is a reasonable belief that it is necessary to defend against a perceived threat

• So wide that it can cover anyone's ass

• Example: Trayvon Marin

Ward v. Canada (2002)

• Ward charged with selling blueback seal pelts, which is illegal based on the Marine Mammals Regulations

• He applies to the Supreme Court of Newfoundland to declare the Regulations are ultra vires to the federal government. They rule against him.

• The NFL Court of Appeal overturns the ruling.

• The Supreme Court of Canada rules that it's in the jurisdiction of the federal government because it's purpose is to protect the fishing industry

Bill 21

• Secularism Bill

• Prevents public authority figures (police, teachers) from wearing religious symbols while at work

• QC invokes s. 33

Bill 96

Government workers must communicate exclusively in French

R v Keegstra (1990)

• History teacher tells his class the Holocaust was fake/a conspiracy and expects students to repeat this on tests

• Charged with hate speech, but he argues that this violates his rights to freedom of expression

• Convicted in Alberta Court, overturned in Alberta Court of Appeal

• Supreme Court rules against him.

Marriage Amendment Act (2004)

"marriage means the union of a man and a woman"

• invokes s. 33