Canadian Legal Studies: Government, Rights, and Historical Contexts

Agamben

A contemporary Italian philosopher who examines how states exercise power by declaring exceptions—moments where the normal rule of law is suspended.

State of Exception

A situation where governments claim that emergencies justify setting aside ordinary rights and laws. Over time, these temporary suspensions often become normalized.

Homo Sacer

A person stripped of political and legal protection—someone who can be punished or even killed without legal consequence. In modern contexts, this represents people excluded from citizenship or legal recognition, such as detainees, refugees, or those targeted under national-security laws.

Section 98 (1919)

Originally a temporary law to suppress 'unlawful associations' after the Winnipeg General Strike.

War Measures Act

Reintroduced sweeping emergency powers during WWII & the 1970 FLQ Crisis; civil liberties suspended, citizens detained without trial.

CSIS Act (1984 onward)

Institutionalized surveillance and security measures permanently within the state apparatus.

Hobbes

Believed humans are naturally selfish and violent; a strong ruler is needed to maintain order ('Leviathan').

Locke

Believed people are rational and cooperative; government exists to protect natural rights (life, liberty, property).

Branches of Government in Canada

Legislative: Makes laws (Parliament). Executive: Enforces laws (Prime Minister and Cabinet). Judicial: Interprets laws (Courts).

Federal Government

National level responsible for defence and immigration.

Provincial Government

Regional level responsible for education and healthcare.

Municipal Government

Local level responsible for bylaws and transit.

Federal vs. Provincial Powers

Outlined in Constitution Act (1867) — Federal: Defence, banking, immigration. Provincial: Property, civil rights, healthcare.

BNA Act (1867)

Represented compromise — provinces agreed to join by negotiation, not force.

Canada's parliamentary democracy

Combines Hobbesian ideas of authority with Locke's belief in consent and rights.

Act of Union (1841)

Evolved into the structure of government known today through rebellion, reform, and negotiation.

Responsible Government (1848)

A system that evolved into the current structure of governance in Canada.

Historical Context of Canada

Canada's creation is often described as peaceful, but it emerged from centuries of violence, rebellion, and dispossession.

Early Colonial Conflicts

The 17th-19th centuries were marked by wars and revolutions among colonial powers (British, French, Americans).

Normalization of the Exceptional

Agamben warns against the gradual transition of emergency powers from extraordinary responses to permanent features of governance.

Responsible Government

Government must maintain the confidence of the elected House — if it loses that confidence, it must resign or call an election.

Constitution & Confederation

The British North America Act (1867) formed Canada's Constitution — a framework for governance.

Parliamentary Supremacy

Parliament (not courts) held ultimate authority under early British-style constitutionalism.

Notwithstanding Clause (Section 33)

Allows governments to override certain Charter rights for up to five years.

Section 98

A 1919 law banning 'unlawful associations' after the Winnipeg General Strike — used to suppress communists.

State of Emergency / Exception

Temporary suspension of normal laws during crisis.

Immigration Act & Citizenship

Legislation governing who can enter or stay in Canada.

Adversarial System

Two opposing parties present evidence before a neutral judge; truth emerges through contestation.

Tort Law

Civil law addressing harm between individuals — aims for compensation (redress), not punishment.

Dispute Resolution

Methods for resolving legal conflicts — negotiation, mediation, arbitration, litigation.

Capacity

Legal ability to enter a contract (e.g., not minors or mentally incapacitated).

Validity

Contract must include offer, acceptance, consideration, and legality.

Discharge

Ends when fulfilled, breached, or frustrated.

Undue Influence

Exploiting trust or power in forming a contract.

Duress

Forcing agreement through threat or pressure.

Leave to Appeal

Permission from a higher court to review a lower court decision.

Duty of Care

Obligation to avoid harm to others.

Causation

Proof that harm was caused by the defendant's act.

Contributory Negligence

Victim partly responsible, damages reduced.

Strict Liability

Fault not needed — responsibility automatic.
Shows state priority of safety over freedom

Damages

Monetary compensation aimed for restoration, not punishment.

Reference Case

When government asks the Supreme Court for an advisory opinion on a legal question.

Agamben

Philosopher who studied how states use crises to suspend rights (State of Exception).

Final Integration Themes

1. Law mirrors politics: The Constitution, courts, and contracts all arise from negotiation and power balance. 2. Citizenship is conditional: Historically defined by exclusion — race, gender, class, morality. 3. Emergency becomes normal: Section 98 → FLQ → CSIS show permanence of state power. 4. Individualism shapes law: From adversarial trials to contract enforcement, law assumes autonomy and reason — rooted in liberal philosophy (Locke).

Justice as balance

Canadian law seeks equilibrium between order and rights, federal and provincial, individual and collective.

Historical Context

From Rebellion to Confederation.

Indigenous resistance

These conflicts shaped the formation of British North America and Indigenous resistance to colonization.

Creation of Canada

Canada's creation is often described as peaceful, but this is misleading — it emerged from centuries of violence, rebellion, and dispossession.

The 1830s Rebellions

Rebellions in Upper and Lower Canada were influenced by dissatisfaction with the Constitutional Act (1791).

Constitutional Act (1791)

Created elected assemblies but left real power with appointed councils (wealthy elites).

Lord Durham's Report (1839)

Recommended uniting the colonies and introducing responsible government.

The Act of Union (1841)

United Upper and Lower Canada into the Province of Canada.

Political stability

Aimed to assimilate French Canadians and create political stability.

Equal representation

Both sides had equal representation in government, even though the French population was larger.

Responsible Government Achieved (1848)

Reformers Robert Baldwin and Louis-Hippolyte LaFontaine successfully pushed for responsible government.

Path to Confederation (1867)

Internal and external factors led to the colonies seeking unity for economic stability and security.

British North America Act (1867)

Created the Dominion of Canada, with federal and provincial divisions of power.

Self-governance

Canada was self-governing but could not amend its own constitution — only Britain could.

Patriation and the Charter (1982)

In 1982, the Constitution was 'brought home', giving Canada full control over constitutional amendments.

Charter of Rights and Freedoms

Added in 1982, shifting constitutional culture and giving courts authority to limit political power.

Judicial review

Courts gained new authority to enforce rights, more like the U.S. model of judicial review.

The Constitution

A legal framework and moral charter protecting individual rights.

Section 33 - The Notwithstanding Clause

Allows federal or provincial governments to override certain Charter rights for up to five years.

Political compromise

Created to secure provincial support during patriation.

Democratic safeguard

Protects parliamentary sovereignty.

Potential danger of Section 33

Can undermine fundamental rights.

Early Immigration Acts

Defined citizenship by exclusion, focusing on who was not wanted.

First Immigration Act (1869)

Drew heavily from earlier Quarantine Acts, aimed at keeping out 'undesirable' groups.

Exclusion Criteria (19th-20th Century)

Excluded those considered a financial or moral 'burden,' including the poor, elderly, disabled, or widowed.

Deportation & Morality Laws

Formal deportation system developed by the early 1900s, often used against working-class immigrant women.

Political & Racial Exclusions

1910 amendments allowed deportation for political ideology, reflecting systemic racism.

Chinese Exclusion Act (1923)

Reflected systemic racism against Chinese immigrants.

Citizenship and Voting Rights

Historically tied to whiteness, property, and patriarchy.

1867 Voting Rights

Only men over 21 who owned property could vote.

1918 Women's Voting Rights

Women gained federal voting rights.

1960 Indigenous Voting Rights

Indigenous peoples gained the right to vote without losing their status.

Hobbes vs. Locke

Hobbes believed in a strong government to maintain order; Locke believed in protecting natural rights.

Levels of Government in Canada

Federal (national issues), Provincial (education, healthcare), Municipal (local services).

Homo Sacer (Agamben)

Concept from philosopher Giorgio Agamben.

Bare Life

Means 'bare life' — a person excluded from society's legal protection (e.g., prisoners, refugees). Example: A refugee detained indefinitely with no trial.

Notwithstanding Clause (Section 33 of Charter)

Allows governments to override certain Charter rights temporarily (for 5 years). Example: Quebec used it to enforce French-language laws despite freedom of expression protections.

Capacity to Enter Contracts

Ability to understand and agree to a contract. Example: Adults have capacity; minors usually don't.

Validity of a Contract

A contract must have offer, acceptance, consideration (exchange), and consent. Example: A signed job offer with clear terms is valid.

Discharge of a Contract

When a contract ends (by completion, agreement, frustration, or breach). Example: You finish a project as agreed — contract discharged.

Two Main Principles of the Adversarial System

1. Each side presents its best case. 2. The judge/jury remains neutral and decides based on evidence. Example: Lawyers question witnesses; judge ensures fairness.

Adversarial vs. Inquisitorial

● Adversarial: Judge is neutral; parties investigate (Canada, U.S.). ● Inquisitorial: Judge leads the investigation (France). Example: In Canada, lawyers collect evidence; in France, the judge does.

Six Functions of Tort Law

1. Compensate victims 2. Deter harmful acts 3. Punish wrongdoers 4. Restore fairness 5. Educate society 6. Prevent future harm

Intentional Torts vs. Torts of Negligence

● Intentional: Done on purpose (assault, trespass). ● Negligence: Careless action causing harm. Example: Punching someone (intentional) vs. causing an accident (negligent).

Contributory Negligence / Contributory Fault

When the victim is partly at fault. Example: If you weren't wearing a seatbelt, damages may be reduced.

Immigration Act

Canadian law that regulates who can enter and stay in the country. Example: Sets rules for refugees, permanent residents, and deportations.