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semester 2 > Law test 2 > Flashcards

Law test 2 Flashcards

1
Q

Confederation Debates

A
  • February 3rd - March 13th 1865
  • Parliament debated the confederation of British colonies, aimed to create a union from Newfoundland to Lake Superior
  • John A. Macdonald wanted a strong central power
  • Alexander Galt put forth economic arguments for union
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2
Q

Amending Formula

A

A series of procedures that are listed from s. 38 - s.49 of the Constitution Act. It wasn’t easy to create because all the Provinces wanted to make sure that they had a say if/when the Constitution changed

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3
Q

Entrenchment

A

A system that makes certain amendments either more difficult or impossible to pass.

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4
Q

Pith and Substance

A

The first tool used by the courts to determine which level of government has authority over a certain matter/issue
- Asks what the essential matter of the law is by using intrinsic and extrinsic evidence
- the true aim of a piece of legislation of the government of Nova Scotia was to stop abortion clinics from being set up in the province. That much is clear from the transcripts of the debate in the legislature. However, the legislation itself was written to appear to be aimed at regulation of medical services within hospitals. The Supreme Court saw through the wording of the legislation and instead looked at those debates to come to its conclusion as to the true purpose of the legislation

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5
Q

Power of Disallowance

A

An authority granted to the governor general in council (federal cabinet) to Invalidate an act (also called a statute) passed by a provincial legislature

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6
Q

Soverignty-Association

A

The combination of two concepts: the achievement of sovereignty for the Quebec state and the creation of a political and economic association between this new independent state and Canada
- Aims to make Quebec a sovereign state while still maintaining economic connections with Canada

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7
Q

Patrition of the Constitution

A

Saw the provinces granted influence in Constitutional matters and resulted in the Constitution being amendable by Canada only, with no role for the United Kingdom

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8
Q

Supreme Court of Canada

A
  • The highest court in the judicial system of Canada
  • Has nine justices
  • The ultimate judicial power
  • Hears both Common and Civil Law cases
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9
Q

British North America Act, 1867

A
  • Recieved royal assent on March 29th 1867
  • United the territories Nova Scotia and New Brunswick into a single dominion called Canada
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10
Q

Constitution Act 1867

A
  • Originally known as the BNA Act
  • The rest is the BNA Act
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11
Q

Canada’s Unwritten Constitution (Convention)

A

-Unwritten Constitutions identified by the Supreme Court:
- Federalism
- Democracy
- Constitutionalsim and the rule of law
- Respect for Minorities
- The separation of powers and the independence of the judiciary

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12
Q

Court Decisions

A
  • A judicial determination of a parties rights and obligations reached by a court based on facts and law
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13
Q

Federal vs. Provincial Level of Governments (Sections 91 and 92)

Division of Power

A
  • The governmental powers and duties are split between two levels
  • National (Central/Federal) and many smaller ones (provincial)
  • Areas of jurisdiction were outlined at the Quebec Conference in 1864
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14
Q

Municipal Government

Division of Powers

A
  • Under the provincial government
  • Responsible for providing services within the local boundaries such as:
  • Airports, ambulances, animal control and by-law enforcement
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15
Q

Education

Division of Powers

A
  • Section 93 of the Constitution Act, 1867
  • Each province can make legislation exclusivley in relation to education
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16
Q

The Structure of the Courts

A
  • Trial level courts hear Civil and Criminal cases: Can be called Supreme Court, the Court of Queen’s Bench, or the Superior Court of Justice
  • Appeal Level courts/Courts of Appeal: hear civil and criminal appeals from the superior trial courts listed above
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17
Q

Judicial Committee of the Privy Council

A
  • Highest court of appeal for many Commonwealth countries
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18
Q

The Persons Case

A
  • Edwards v. A.G. of Canada, 1927
  • The ruling that established the right of women to be appointed to the Senate
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19
Q

Statute of Westminster, 1931

A
  • An act of the Parliament of the UK that sets the basis for the relationship between the dominion (Commonwealth realms) and the Crown
  • An Act to give effect to certain resolutions passed in Conferences heald in the years 1926 and 1930
  • Gave Dominions full legal authority except in areas they didn’t want
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20
Q

Patrition of the Constitution

A
  • In 1982, Canada “patriated” its Constitution
  • It transferred the country’s highest law (the British North America Act) from under the British Paliament to Canada’s fedreal/provincial legislatures
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21
Q

The Meech Lake Accord

A
  • A series of proposed amendments to the Constitution, negotiated in 1987 by PM Brian Mulroney
  • Intended to persuade the government of Quebec to symbolically endorsw the 1982 constitutional amendments by providing decentralization of the Canadian federation
  • There were concers about lack of citizen involvement in the drafting
  • Passing of the Accord failed and greatly increased tensions between Quebec and the rest of Canada, sparking a renewed interest in the Quebec sovereignty movement
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22
Q

The Charlottetown Accord

A
  • Proposed amendments to the Constitution of Canada by the federal and provincial governments (1992)
  • Submitted to a public referendum on October 26th and then defeated
  • Formally institutionalized the federal-provincial-territorial consulatative process and provided Aboriginal inclusion in certain circumstances
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23
Q

1995 Quebec Referendum

A
  • The second referendum to ask voters in Quebec whether or not they should declare sovereignty from Canada
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24
Q

Reasonable Limits

A
  • The limitation must have merit or importance in order to justify overriding a constitutionally protected right
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25
Q

Strike Down

A
  • To abolish a law or regulation
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26
Q

Notwithstanding Clause

A
  • Section 33
  • Allows Parliament or the legislature of a province to derogate from certain sections of the Charter, namely section 2
  • Prevents a court from invalidating a law that violates Charter provisions that relate to fundamental freedoms and equality rights (section 15)
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27
Q

Read Down

A
  • Instead of striking down the law, the courts reword it in order to make it consistent with constitutional/legal principles so it can still be passed, just differently
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28
Q

English Common Law and Customs

A
  • The greatest influence on our government and laws
  • Systems of adjudication varied and were influenced by local custom and superstition (trial by ordeal or trial by combat)
  • King Henry II trained circuit judges who traveled and held assizes (traveling courts) and heard local cases
  • As judges made their rulings, they wrote their decisions and legal reasoning. Other judges could consult the decision. This was known as case law or common law, because it allowed the law to be applied in a common fashion throughout the country.
  • Henry also established the jury system. The right to a trial by jury was broadened under King John who was forced to sign the Magna Carta which brought in two legal principals: Rule of law and Habeas Corpus
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29
Q

Canadian Bill of Rights and Limitations

A
  • 1960
  • Banned enslavement, torture, and arbitrary arrest and detention
  • Enshrined the right to be presumed innocent, and the right to work
  • Applied only to federal statutes, not provincial ones
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30
Q

The Victoria Charter

A
  • Proposed amendments to the Constitution of Canada in 1971
  • Failed attempt to patriate the Consitution, add a bill of rights and entrench English and French as Canada’s official languages
  • Later suceeded on these objectives in 1982
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31
Q

The Charter as Law

A
  • The Charter reflects a positive-law perspective, by including the “reasonable limits clause.” Section 1 states that any rights guaranteed by the Charter may be limited “by reasonable limits prescribed by law.” Section 33, known as the notwithstanding clause also permits Parliament or the provinces to declare a law valid even when it violates a right guaranteed in the Charter, such as the “French Sign Law” in Quebec
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32
Q

Rights and Freedoms

A
  • Outlines/protects rights and freedoms such as freedom of expression and the right to equality
  • Forms a part of the Constitution
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33
Q

Fundamental Freedoms (Section 2)

A
  • Freedom of consiousness and religion
  • Freedom of thought, belief, opinon and expression, including freedom of the press
  • Freedom of peaceful assembly
  • Freedom of association
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34
Q

Democratic Rights (Sections 3 to 5)

A
  • Right to vote
  • Right to campaign
  • Right to seek elected office
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35
Q

Mobility Rights (section 6)

A
  • Rights that are designed to ensure that individuals can move around the country and earn a living wherever they choose
36
Q

Legal Rights (sections 7 to 14)

A
  • Sets rights that protect Canadians when dealing with the justice system
  • Ensures that individuals who are involved are treated fairly (trial in reasonable time, right to a lawyer, etc)
37
Q

Equality Rights (section 15)

A
  • Every individual is equal before and under the law
  • Has the right to equal protection and equal benifit of the law without discrimination based on race, nationality, colour, religion, sex, age or mental or physical disability
38
Q

Official Languages (section 16 -22)

A
  • Official language rights apply in both the federal government and provincial government
  • Canadians can use French or English when they deal with the government of Canada
39
Q

Minority Language Rights (section 23)

A
  • Requires provincial and terrirotial government to provide education to Canadians in the official language of their choice, even when the minority of residents speak the language
40
Q

Section 1: Reasonable Limits

First test of section 1-R v Oakes sets out standards of use of s. 1

A
  • refered to as the reasonable limits clause
  • The section that can be used to justify a limitation of a person’s charter rights
  • Charter rights can be infringed if the infringement is reasonably justified
41
Q

Section 33: The Notwithstanding Clause

A
  • To prevent a court from invalidating a law that violates Charter provisions relating to fundamental freedoms, legal rights or equality rights
42
Q

Judicial Activism

A
  • A philosophy that says that holding the courts can and should go beyond applicable law to consider broader societal implications
  • Judges should rule on their own views rather than a precedent
43
Q

Resolving Charter Disputes

A
  • A public law matter
  • Can be settled in 3 ways:
  • Settling it themselves
  • Ask a third party for advice
  • Ask a third party to force them into something
44
Q

The Increasing Role of Supreme Court

A
  • Role has evolved since 1875
  • The final court of appeal in the Canadian judicial system (wasn’t originally)
  • Desicions of the Supreme Court were originally appealed to the Judicial Committee of the Privy Council in the United Kingdom
45
Q

Admissibility of Evidence (Section 24 of Charter)

A
  • Once a court concludes that evidence was obtained in violation of an individuals Charter rights
  • The evidence must be excluded if its inclusion would harm the reputation of the administration of justice
46
Q

Remedies

A
  • The means with which a court of law, usually civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will in order to compensate for the harm of a wrongful act
47
Q

Proportionality Test (R. v. Oakes)

A

Is the limit on the right or freedom reasonable/justified
- Measures must be fair and not arbitrary
- Must be carefully designed to achieve the objective
- Must be rationally connected
- Must impare the right as little as possible

48
Q

Three Parts of R. v. Oakes

A
  1. It enforces an important government objective
  2. The limitations of individual rights or freedoms is minimal
  3. The law is clear and sets precise standards
49
Q

Admissibility of Evidence Test (R. v. Grant)

A

When evidence is obtained by way of a Charter breach, the test decides if the evidence should still be admitted

50
Q

R. v. Grant consideration

A

Would a reasonable person informed of all circumstances and values of the Charter conclude that the admission of the evidence would bring the administration of justice into disrepute

51
Q

R. v. Grant sub-considerations

A
  • The seriousness of the States conduct
  • The impact of the breach on the accused
  • Societies interest in the adjudication of the case
52
Q

Internment

A
  • The state of being confined as a prisoner, especially for political or military reasons
53
Q

Bona Fide

A
  • Latin
  • “In good faith” or “with sincere intention”
  • Actions or agreements made honestly and without intent to deceive
54
Q

Undue Hardship

A
  • If an accommodation is likely to cause significant health and safety risks
  • Employers, housing providers and service organizations have an obligation to protect the health and safety of all their empoyees, clients and tenants
55
Q

Ombudsman

A
  • Works independently as a mediator to provide people with a confidential avenue to adress complaints and resolve issues at the lowest possible level
56
Q

The Magna Carta

A
  • Issued in June 1215
  • The first document to put into writing the principle that the king and his government was not above the law
  • Sought to prevent the king from exploiting his power
57
Q

Bill of Rights

A
  • Protects the rights to equality before the law and ensures protection of the law
  • Protects the freedoms of religion, speech, the press and of assembly and association
  • Guarantees legal rights such as the rights to counsel and fair hearing
58
Q

Declaration of Independance

A
  • We didn’t have full legal autonomy until the Statute of Westminster was passed (it is the declaration of independence)
  • December 11, 1931
59
Q

American Bill of Rights

A
  • Bill of rights is the first of 10 Amendments to the Constitution
  • Set out Americans’ rights in relation to their government.
  • It guarantees civil rights and liberties to the individual
  • Such as freedom of speech, press, and religion
60
Q

France’s Declaration of the Rights of Man

A
  • Men are born and remain free and equal in rights
  • Social distinctions may be based only on considerations of the common good
  • Preserve the natural and imperscriptible rights of Man:
  • Liberty, Property, Safety and Resistance to Opression
61
Q

Britain’s Emancipation Act

A
  • Slavery Abolition Act, 1833
  • The act of Parliament to abolish slavery in British colonies
  • Freed more than 800,000 slaves in the Caribbean, South Africa and Canada
62
Q

Impact of WWII on Human Rights (Development of UDHR)

A
  • WWII resulted in the creation of the United Nations and Universal Declaration of Human Rights
  • Set basic rights that every country must follow
63
Q

War Measures Act

A
  • Passed on August 22, 1914
  • Gave the federal government power to maintain security and order during “war, invasion or insurrection”
  • Was used to suspened civil liberties/rights of “enemy aliens” during WW1 & WW2
64
Q

Internment of Japanese Canadians

A
  • Canadian government forcibly relocated and incarcerated over 22,000 Japanese Canadians in British Columbia
  • From 1942 - 1949
  • No Japanese Canadian was ever charged with disloyalty
65
Q

Treatment of Indigenous and Black people

A
  • Indigenous people face generational trauma and systematic oppression through the current legal system and past systems such as residential schools and human rights restrictions
  • Black people still deal with systematic oppression and racism, were victims of slavery for hundreds of years
66
Q

Canadian Human Rights Act (CHRA)

A
  • All individuals should have an oppertunity equal with other individuals to create a life for themselves and have their needs accomodated without being hindered because of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for a pardoned offence
67
Q

OHRC scope

A
  • Ontario law that prohibits discrimination in:
  • Employment
  • Housing
  • Goods, services and facilities
  • Contracts
  • Membership in trade, professional and vocational associations
68
Q

Grounds for OHRC

A
  • Citizenship
  • Race
  • Place of Origin
  • Ethnic Origin
  • Colour
  • Ancestry
  • Disability
  • Age
  • Creed
  • Sex/pregnancy
  • Family status
  • Marital status
  • Sexual orientation
  • Gender Identity
  • Gender Expression
  • Recipt of public assistance in housing
  • Record of offences (in employment)
69
Q

Human Rights Commissions and Tribunals

for Ontario

A
  • Human Rights Tribunal of Ontario (HRTO)
  • Deals with claims of discrimination filed under the Ontario Human Rights Code
  • Resolves applications through mediation or adjudication
70
Q

The Canadian Charter of Rights and Freedoms s. 15

A
  • Every individual is equal before and under the law and has the right to equal protection and equal benidit of the law without discrimination based on race, religion, sex, age, or disability

(the constitution act)

71
Q

Aboriginal Rights

A
  • Collective rights which flow from Aboriginal peoples’ continued use and occupation of certain areas
  • Generally include rights to the land, rights to subsistence resources and activities, the right to self-determination and self-government, and the right to practice one’s own cuture and customs
72
Q

Collective Rights

A
  • Human rights that protect communities and the environment
  • Emerged because individual human rights do not adequately protect Indigenous peoples, local communities and other minorities
  • Ex. Right to preserve ones culture or speak a native language
73
Q

Treaty

A
  • Formal agreement between the government, Indigenous peoples and often provinces and territories that define ongoing rights and obligations on all sides
  • A formal agreement between two parties
74
Q

Cultrual Genocide

A
  • The attempted destruction of a groups culture, religion, and identity
  • A coercive act imposed by a dominant group upon a weaker or minority group
  • Colonialism
75
Q

Land Claim

A
  • Assertions of aboriginal title by Indigenous groups over their ancesteral lands and territories
76
Q

Affirmative Action

A
  • Affirmative action refers to a set of policies and practices within a government or organization seeking to benefit marginalized groups
  • Cannot violate section 15(1) of the Charter
  • An affirmative action cannot discriminate on the basis of a prohibited ground
77
Q

Security Certificates

A
  • Within the Immigration and Refugee Protection Act
  • Only permanent residents or foreign nationals can be subject to a security certificate
  • A legal mechanism by which a Canadian government can detain and deport permanent residents and all other non-citizens (ex. foreign nationals) living in Canada on potential terrorism charges
78
Q

Royal Proclamation of 1763

Aboriginal-European relations

A
  • A document that set out guidelines for European settlement of Aboriginal territories in North America
  • Initially issued by King George in 1763 to officially claim British territory in North America after Britain won the Seven Years War
79
Q

The Indian Act, 1876

A
  • Came into power on April 12 1876
  • Consolidated a number of earlier colonial laws that sought to control and assimilate Indigenous peoples into Euro-Canadian culture
  • The Indian act has been amended many times over the years to do away with restrictive and oppressive laws
80
Q

Truth and Reconcilliation

A
  • Residential School survivors advocated for recognition and reparations and demanded accountability for the intergenerational impacts of harm caused by the government to Indigenous people
81
Q

MMIW

A
  • Missing and Murdered Indigenous Women
  • Around 4,000 Indigenous women and girls have gone missing or been murdered between 1956 and 2016
  • Indigenous women are 400% more likely than other Canadians to go missing
  • The Highway of Tears is a 725 Km stretch of highway 16 in BC. It’s a very high activity area for the kidnapping and murder of Indigenous women
82
Q

Safe Drinking Water

A
  • 73% of First Nations water systems are high or medium risk of contamination
  • First Nations communities have a disproportionate rate of unsafe drinking water
83
Q

UN Declaration on the Rights of Indigenous Peoples (UNDRIP)

A
  • Provides a framework for reconcilliation between governments and Indigenous communities, healing and peace, as well as harmonious and cooprative relations based on the principles of justice, democracy, respect for human rights, non-discrimination and good faith
84
Q

Purpose of Security Certificates

A
  • An Immigeation proceeding for the purpose of removing from Canada non-Canadians who are inadmissiable for reasons of national security, violating human or international rights, involvement in organized or serious crimes
85
Q

How are Security Certificates obtained

A
  • A process within the Immigration and Refugee Protection Act
  • Immigration Minister and Minister of Public Safety put together a security certificate
  • The certificate is referred to the Federal Court to determine if it is reasonable or unreasonable
  • If reasonable, it becomes an enforceable removal order
  • The determination can be appealed
  • All information is classified to the accused and their legal council
86
Q

Minority and Majority rights

A
  • Majority rule is the idea that the group with the most political power in a country can make binding decisions
  • Minority rights are protected rights that are enjoyed by everyone, even those not in the majority

semester 2 (8 decks)

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