Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

DCC 2119 > Midterm #1 > Flashcards

Midterm #1 Flashcards

1
Q

What are the main reasons for the adoption of human rights law

A
  • change in mentalities and population has becomes more sensitive to diversity to minority rights
  • consequences of WW2 the populations was shocked by the torture done by nazis done during this war
  • Anti-colonial movements and the increase of numbers in proliferations and declaration of independence
  • Democratic movements (immigrants, refugees in other countries) rise of immigration around the world played an important role in the protection of raising the public awareness of protecting refugees
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the most important principle of the united nations charter

A

The principle of non-discrimination

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is the Canadian Human rights Commission ?

A
  • Responsible for the application of the Canadian Human Rights law
  • Mission is to receive complaints concerning human rights act and evaluate if the person is subject to the complain
  • ex: Person belonging to visible minority is refused to participate they can complain to the commission and then they can evaluate the complainant according to the case
  • Anyone can complain who believes their rights are violated in the competence of the commission so they can investigate (can be by one person or group of people)
  • Once they find a a violation they refer it to the human right tribunal
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What section sets out the creation of the commission and tribunal?

A

Section 4-40 in the Canadian human rights act.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Canadian Human Rights Tribunal

A
  • cannot judge all cases only cases provided by human rights acts and cases related to discrimination
  • act states all Canadians have the right to equal opportunities, rights and no discrimination
  • similar to the court of law but only hears cases of discrimination
  • tribunal jurisdiction is limited to the human rights act and the procedure is they are reviewable for judicial review for the court tribunal
  • for the area of competence for this court refer to the Canadian Human rights act
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Is the Canadian Human rights act described as a unique document in the legislative assembly?

A

yes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

How is the Quebec Charter different from the Canadian Charter?

A
  1. Inclusion of certain economic and social rights
  2. application of the charter to relations to the citizens but also private relationships (violations regarding individuals)
  3. presence of an exhaustive list prohibited grounds of discrimination in article 10 of the Quebec charter but not in Canadian charter (sec 15)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What types of rights and freedoms are in the charter?

A
  • language rights
  • political rights (right to vote, freedom of expression)
  • legal guarantees (civil rights)
  • charter does not guarantee a adequate standard of living nor the right to public education or health care
  • protection for minimum rights for everyone
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is sec 52. in the constitution about?

A

Shows the constitution is superior to all laws.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What does presumption of constitutionality mean?

A
  • Means when we have a rule of section in the constitution or charter we presume that these rights are legal
  • If a person challenges a legislative or regulatory act must prove or present evidence of the existence of the violation of his or her rights
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is the process that is presumed to be constitutional to invalidate the charter?

A
  • For a norm to be adopted in Canada it must be constitutional that means any law can be challenged by a citizen in court or tribunal
  • the courts will then decide wether the norm conforms with the constitution and the charter
  • if this norm violates a law they will eliminate the norm
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What rights are protected by the charter?

A

First and second generation rights are protected by the charter.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

First Generation Rights

A
  • Government should not interfere in personal affairs, cannot force us to do anything (religion, politics)
  • Negative freedoms
  • Ex: Government cant stop us from speaking out, following a religion, or tell us who to vote for
  • At least not deprive us of minimum rights
  • sec. 1 can limit these rights
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Second Generation Rights

A
  • Require the government to interfere and act to protect our rights and freedom
  • Positive freedoms
  • ex: if education is only received by some the government must interfere and make it accessible for everyone
  • Philosopher Maslow believed that humans deprived of basic needs such as shelter, health care cannot think as efficiently about other social issues
  • idea is that person deprived of these basic rights and freedoms cannot exercise their fundamental needs and won’t be helpful to society
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Third Generation Rights

A

Intended to serve the international community as a whole about the protection of the environment, development, sharing the common heritage, right to be different.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Fourth generation rights

A

Prerogatives and the benefit of weak people, disabled, or minorities

17
Q

Transition from first gen to second gen model

A
  • The Canadian charter is written as a First Gen model of non-interference of government but the way it was interpreted the second gen was incorporated
  • Ex: language rights: before the government has obligation to not discriminate based on language but now to protect french they treat them equally (civil workers must know both languages)
  • documents in both french and english
18
Q

The effectiveness of the Charter depends on which elements?

A
  • Depends on the constitution or charter (the text itself) and on the judges and the democratic culture of the society which accepts the judicial review which evaluates the laws and regulations
19
Q

What is the purpose of sec 1 of the charter?

A
  • section 1 provides certain laws are subject to limits in democratic society
  • This called the Oakes test
20
Q

Background info on the Oakes test

A
  • this judgement was rendered in 1986 and concerned the constitutionality of sec 8 of the narcotic act
  • according to this section the respondent is accused of having illegal narcotic product for the purpose of trafficking
  • sec 8 says if someone has narcotic you presume they are guilty although that contradicts sec 11
  • sec 11 of the charter (presumed innocent)
  • constituted the reverse of the burden
  • for the the courts created the Oakes test to determine which provision should be invalidated by the charter
21
Q

What is the Oakes Test?

A

4 ways to see if the limitation is justifiable…
1) Is the objective pressing and subtantial
2) rationality connected to that objective
3) means should impair the right in question as little as possible
4) there must be a proportionality between the objective of the law and the consequence of the citizens rights and freedoms

22
Q

Why is it important to ask if the charter applies?

A
  • because even if we have a violation the court will not be able to render or make a decision on the violation because it is out of their jurisdiction
  • cannot invoke the charter for private cases or certain violation
23
Q

2 possibilities for applying the charter

A

1) when we are sure one of the parties are the government
2) another is where there is daily control by the government body
- when the government uses a -private company to achieve certain roles or
- when a private company decided to apply a government policy or plan
- there is no clear boundaries between what is government action and what is not
- the judge must interpret the charter in such cases to determine whether the charter applies

24
Q

Direct government action

A

Applies automatically (one of the parties is the government)

25
Q

Indirect government action

A

government hides behind a private company -and makes it carry out certain actions

26
Q

Third scenario (government action)

A
  • Private party acts in a way that is considered government action
  • The government has nothing to do with the private party (apply charter)
  • Ex: if the government hired a company to administer a prison but the company operates independently
27
Q

What is the 3 step analysis of whether or not there has been a violation of the freedom of expression (Irwin toy test)

A
  1. Determine whether the activity is expressive content or not
  2. Method or location of the expression (public or private) (private is excluded from protection under sec 2(b))
  3. Does the limit infringe on the of the protection in eighter purpose of effect.
28
Q

2 ways to prove the violation of freedom of expression

A
  1. By propose of the limitation
    - even if the purpose of the limitation is correct you can still move on to effect of the limitation
    - if the purpose of the limitation is to limit the expression it is a violation
  2. By effect of the limitation
    - the effect of the limitation may also cause a violation
29
Q

Internal Limits to the freedom of expression

A
  • refers to limitations which are not protected under sec 1 and are inherently unjustifiable
  • Ex: violence, intimidation, forms of defamation
  • Lieu of expression are also internal limits
30
Q

External Limits

A
  • limits which are imposed by the government and protected under sec 1 or even through the application of the Oakes test
  • Ex: protection against hate speech
31
Q

What limitation can be impose on the freedom of religion?

A
  • the only exception is sec 1 or the Oakes test
32
Q

What is Religious neutrality of the State?

A
  • Means that the state must not interfere in religion and beliefs and rather the state must remain neutral in this regard.
  • the state will never promote or favour or oppose any particular religious beliefs and this becuase it must respect all religions
  • it is through jurisdictional development that we impose religious neutrality and recognize this principle
33
Q

Direct violation of freedom of religion

A

If the government requires us to work on a holiday (like sunday)

34
Q

Indirect violation of freedom of religion

A

if the government does not make accommodations for someone to practice their religion other than a sunday

DCC 2119 (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions