Law and Morality Pt. 2 (Week 6) Flashcards
What was the product of the Wolfenden committee? (1957)
What did Pithy Trudeau say?
Discussion on homosexuality as a criminal offence or not
Decided there must remain a realm of privacy in morality which is not the laws bidness honey!
“The state has no business in the bedrooms of the nation”
What is Mill’s harm principle?
The only purpose for the exertion of power over people against there will is to prevent harm to others
His own good, either physical or moral, is not a sufficient warrant
What does Devlin’s essay argue? How does this stand in contrast to mill’s statements?
No need for common religion but we need common morality
Disagrees with mill’s idea being based on human faliability
Argues - we may be wrong but this is not enough to prevent state intervention, sees mill as 2 idealistic
Life cannot be made intolerable for a majority
What are Devlin and Mill? (what views do they ascribe 2)
Devlin - conservative
Mill - classical liberal
What are the assumptions of classical liberalism?
Hint: there are 4
- relies on level playing field of ideas in public
- marketplace metaphor (no market is free)
- relies on clear divide between public and private
- law as repressive vs. law as enabling vs. law as protection
What is the function of the Charter in Canada?
What are the s. 2 fundamental freedoms?
Balance between the rights of individuals and what infringements are justifiable in a free and democratic society
- Conscience and religion
- thought, belief, opinion, and expression including press and other media
- peaceful assembly
- peaceful association
What is the importance of the R. V Butler case?
Precedent setting case in Can law - revolved around obscenity
Namely are the obscenity provisions in the CCC a violation of rights? specifically 2(b) expression?
What is the Charter Challenge Framework?
- Is there a rights violation
2. Can this violation be justified in a free and democratic society
Give the procedural history of the Butler case up to the SCC?
- Trial - found guilty of 8 or 173 counts of obscene material
- Appeal - majority finds in favour of the crown, re-instates prior conviction
What is a standard of tolerance?
What does the court hold true about community standards tests?
What we would allow other Canadians to be exposed to
Must be national - not just based in a small community
Must be universal, context is irrelevant
not necessarily be definitively proved by the crown
Must still respond to changing morals/norms
What are the 3 categories of porn?
Violence or threat
Undue exploitation of sex
Degrade and dehumanizing
How is harm defined in Butler?
- Anything that predisposes a person to act in an anti-social manner
- This anti-social behaviour undermines society’s proper functioning
What did the sup court rule in Butler?
What is the conclusion to the case?
What distinguishes “overriding objective”?
Parliament can make laws on the basis of fundamental morality 2 safeguard values and integrity of free and democratic society
Harm becomes a new criteria, ordered a new trial based on this criteria
Not preserving morality but avoiding harm
What were the main issues in the Little Sisters case?
What are the bigger issues as they relate to Butler?
- Does customs legislation violate freedom of expression (s. 2b) and equality (s. 15)?
- If so, can these violations be justified?
- How does the harm based test apply to lesbian and gay materials, is test discriminatory?
- Does parliament have obligation to make sure Customs laws and its administration respect minority rights?
- what is the remedy if the violation is proven?
What was the sup court ruling in little sisters?
Unanimously agreed that butler and harm should not be reconsidered
Ruled against violations of s.15 - test applies equally
Issue was with admin of law (customs) not law itself = no real remedy
