lecture recording on 05 February 2025 at 09.44.42 AM

Review of the Constitution

• Discussion on the necessity of law for regulating relationships with the state.

• Examination of various roles fulfilled by the constitution.

• Analysis of the wording and provisions of the Canadian constitution and their implications.

Division of Authority

• The Constitution outlines the authority of different government branches:

  • Executive: Implements laws and policies.

  • Legislature: Responsible for making laws.

  • Judiciary: Interprets laws and administers justice.

• Defines interactions among these branches and limits state powers regarding individual rights.

Limiting State Power

• The Charter of Rights and Freedoms is key in curtailing state authority over individuals.

• Offers defined rights and freedoms that state actions cannot infringe unless justified.

Key Provisions of the Charter

• Section 2: Rights to freedom of expression, religion, association, and conscience.

• Section 7: Rights to life, liberty, and security of the person.

• Sections 8-14: Rights concerning the criminal justice system.

• Section 15: Right to equality, prohibiting discrimination.

• Section 16: Acknowledgment of French and English as official languages, imposing obligations on government interactions.

• Section 23: Minority education rights.

  • E.g., English education rights in Quebec for eligible children.

• Section 35: Protects Indigenous and treaty rights.

  • Acknowledges existing rights of indigenous peoples regarding land use and historic titles.

Unwritten Constitutional Principles

• Recognition of unwritten principles influencing legal interpretations and decisions:

  • Democracy: Assures majority rule in democratic processes with respect to individual province rights.

  • Federalism: Emphasizes negotiation and cooperation among provinces in matters affecting national unity.

  • Rule of Law: Ensures legality in government actions, preventing arbitrary decisions.

  • Protection of Minority Rights: Mandates consideration of minority protections during negotiations.

Rule of Law Principle

• Foundation of public authority exercise:

  • Must be based on established legal framework.

  • Legal challenges are addressed within this context.

• Historical context demonstrated via the Roccarelli v. Duplessis case:

  • Roccarelli, a Jehovah's Witness, lost his liquor license due to political bias from Premier Duplessis.

  • Supreme Court ruled removal was unlawful as it exceeded lawful authority.

  • Affirmed the principle that government authority must be exercised within the law's bounds.

Understanding Theory in Law

• Exploration of why we study legal theory and its importance as a starting point for legal analysis:

  • Theories shape our understanding of law's legitimacy and the context of legal frameworks.

• Various theories to be discussed:

  • Natural Law: Explores the intrinsic link between law and morality.

    • Advocates that law should reflect universal moral principles.

    • Challenges arise regarding who defines these principles and potential biases.

  • Legal Positivism: Focuses on law as it is, not as it ought to be, emphasizing established codes and statutes.

  • Other Approaches: Include theoretical frames regarding law's role in social change or conflict management.

Critiques of Natural Law

• Legitimacy hinges on immutable and universal moral principles that may not address societal diversity.

• Difficulties in applying a single moral perspective across diverse populations.

• Law's adaptability to social changes and challenges regarding moral arguments influencing legality.

Upcoming Topics

• Focused discussions on different theoretical perspectives in law over the next few weeks to provide a deeper understanding of the law's role.

• Examination of historical contexts and contemporary applications of legal theories in societal structures.