Constitutional Foundations (Week 7) Flashcards
What were the sections of the CCC challenged in the Bedford case?
s. 210 - keeping a common bawdy house
s. 212 - living off the avails of prostitution
s. 213 - communicating in public for the purpose of prostitution
What section of the Charter did the Bedford case challenge?
s.7 - life liberty and security of the person in accordance with fundamental principles of justice
+ is this limit justifiable
What did the SCC have to say about the Bedford challenge?
What was the remedy?
Found no justification for provisions (infringements) as they only made the work more dangerous/prevented people from security of the person
Remedy: declared sections unconstitutional
What was the government response to the Bedford case?
Protection of Communities and Exploited Persons Acts (2014)
- criminalizes the purchase of sexual services, regardless of venue
- Stiffens penalties
- Avails, changed to note that prosecution only happens if exploitation is present
- Communication, limited to areas outside schools, daycare, playgrounds
What are some critiques of the changes made by the gov in response to the Bedford case?
- Forces people back underground to protect their clients
- Increased surveillance of sex workers
- Further divisions between police and sex workers, less protection through legal system
- Ongoing sigma and discrimination
Define constitution?
formalized framework of rep and identity
What are the three historical sources of Canadian law?
Common law - British
Civil Law - French
Indigenous law - largely abandoned in pursuit of assimilation
Who states the following: “Country cannot be based on a living lie”
What does this mean?
Mahoney
Rule of law is the roots of confederation but its application to indigenous peoples is dysfunctional, mired in racism and inequality
Undermines trust and creates alienation
What was the royal proclamation of 1763?
What was the Indian act of 1876?
When were treaty rights recognized?
- Acknowledged indigenous rights to land held in trust
- Assimilation, segregation, model for apartheid states
- Introduction of the constitution in 1982
What is civil law?
When was it formally recognized?
French, derived from the nepoleonic code - in codes we trust
Law is a result of abstract ideas and principles
Quebec Act 1774 - continuation of civil law in QC today (not in criminal matters), very similar to common law
What is common law?
What is stare decisis?
Legal tradition, based on local solutions not principles (Judge made law)
Like cases be decided alike
SD = continuity, uniformity and predictability, body of common law emerged
What are the three components of the Canadian constitution?
- British foundations
- Federalism
- Charter of rights and freedoms
When was the BNA act established?
What are the two principles?
1867
- Parliamentary supremacy
- Rule of law
- law must be applied equally, trans-personalized, non-arbitrary
- no one is above the law + impartial administration
- laws are generated by constitutional authority
What was the main issue and the resolution of Roncarelli v. Duplessis?
R's liq licence undue fully removed because a premiere didn't like that he was bailing our J wits SCC split (6-3): action was ultra vires, rule of law was not respected
What is federalism?
Which sections of the BNA allowed this?
Division of state powers (fed and prov)
s. 91 and 92
What is POGG?
Peace, order and good government
What are the three forms of federalism?
- Centralized - differences minimized, strong Canadian state
- Decentralized - provinces hold key roles, include linguistic and cultural min, weak central state
- Diverse - union is always negotiation, mutual recognition
What were the 2 important changes created by the patriation of the constitution?
- ability to amend Can constitution
2. addition of CCR
What is the amendment formula?
House & Senate, more than 7 provinces that make up more than 50% of the Can population
Whats up with Quebec?
What question was asked in the secession?
Never signed the constitution
Can Quebec separate unilaterally?
What was the expanded form of the principles of Canadian constitution from the secession?
Federalism
Democracy
Constitutionalism & rule of law
Respect for minorities
What changes did the charter of rights and freedoms introduce?
Hint: Russell
Shift in powers from legislative to judiciary
Russell
- Less deference 2 authority
- Increasing litigiousness of Canadians
- Dominance of Common Law system means even more role for judges
What even is the bill of rights?
How was it received?
1960
Not entrenched, only applied to federal legislation and regulation
Patchy and inconsistent
Describe R. V Drybones?
Described Lavell?
- intoxication off reserve not permitted
- Indian women not allowed to marry non-indian men
Both examples of unequal distribution of the law in accordance with Indian act
