Enforcing the Charter & Jurisprudence Flashcards
Enforcing the Charter
1. Using authority under s.52 of Constitution Act, 1982
• Constitution is set out as the most powerful law in Canada
• If any law/part of a law goes against the Constitution, it can be declared unconstitutional
• Remedies:
o Strike down: to rule in court that a law is invalid and no longer in effect
o Read down: to rule in court that a law is generally unacceptable, but a specific part s invalid and thus removed
o Read in: to add a term to a law that changes the law, but still allows the law to be upheld as constitutional
Enforcing the Charter
2. Seeking a remedy under s.24 of the Charter of Rights and Freedoms
• Allows anyone who thinks his or her rights have been infringed to apply to court for a remedy under s.24 of the CCRF
o Infringed: broken or violate as in an agreement or right is infringed
o I.e. police searched your home without a warrant and the courts find the search unreasonable. You could apply to have the evidence thrown out under s.24 (2). If the courts decided that allowing the evidence would bring the administration of justice into disrepute, the evidence would be disregarded.
Jurisprudence
• The study of how law has evolved over time • Five factors that drive changes in law: 1. Demographic changes 2. Technological Changes 3. Changes in Values 4. Individual Action 5. Collective Action *Legal Scholarship *Political Demonstrations
Jurisprudence
1. Demographic changes
- Related to the birth & death rates, or trends in immigration, education, and employment
- Influence law b/c new precedents and social values emerge
- I.e. As more women entered the work force during the second wave of feminism, women earned les than men for doing the same/similar jobs. This led to women fighting for a right to “equal pay for work of equal value”
Jurisprudence
2. Technological Changes
• Modern inventions challenge the law to respond to protect public safety and personal privacy
o I.e. 9/11 -> government enforced border security measures (TSA)
o I.e. Bill c.51 -> government can get access to cell phones
Jurisprudence
3. Changes in Values
- Attitudes and values change over time. Drinking and drinking, a once tolerated behaviour, caused outrage from victim’s families and motivated them to take action.
- Lobby group: a number of people trying to influence legislators on behalf of a particular cause or interest. (i.e. Canadian Bankers Association)
Jurisprudence
4. Individual Action
- R. v. Morgentaler – decriminalized abortion
- Sue Rodrigues – challenged s.241
- Gloria Taylor – also challenged s.241, with the BCCLA and won
Jurisprudence
5. Collective Action
• Lobby group (Types:)
o Ad Hoc Organization: an organization created for a specific purpose (i.e. Coalition for Gun Control -> Firearms Act 1995)
o National Organization: an organization that represents a particular group of people on a permanent basis and has more than 1 goal or purpose (i.e. Canadian Association of Chiefs of Police)
o Royal Commissions: a board of inquiry appointed by the government to investigate and report on a particular issue (i.e. fed. Gov. set up Canadian Blood Services after the Krever Commission released a report in 1997 that revealed significant number of HIV/AIDS & Hep. C. sufferers contracted from blood transfusions – took power away from Red Cross)
Jurisprudence
*Legal Scholarship
- Exculpating factor: a factor that clears a defendant of blame
- I.e. Lavallee case: outcome “established a precedent that recognized Battered Wife’s Syndrome as a psychiatric condition that a jury should consider in relevant cases”, such as in self-defense situations.
Jurisprudence
*Political Demonstrations
• Civil disobedience: a peaceful form of protest by which a person refuses to obey a particular law a matter of conscience
