Midterm Flashcards
chapter 1-5
1
Q
Canada (Attorney General) v. Bedford
A
When the SCC was asked to see the legitimacy of a Canadian criminal laws that prohibit solicitations for sex. Held: criminalizing prostitution violated s. 7 of the charter
government was given one year to fix the weaknesses in their legislation.
2
Q
Safe Streets and Communities Act
A
March 2012. It is a legislation focused on a change to existing criminal law
1) Introducing mandatory minimum terms of imprisonment for child exploitation and for the production/distribution of illegal drugs
2) enshrining victim participation in the process of releasing offenders
3) eliminating the possibility of pardons for certain offenders
3
Q
Our individual perceptions of ______ and ______ define our relationship as citizens to the state
A
justice and injustice
4
Q
8 main theoretical perspectives on the law
A
1) positivist
2) natural lawyers
3) legal realists
4) Marxists
5) critical legalists
6) feminists
7) anarchists
8) libertarians
5
Q
Positivism
A
the theory that laws are to be understood as SOCIAL RULES, valid because they are enacted by “the sovereign” or derive logically from existing decisions, AND that questioning of the morality of a law should not limit the operation of the law
6
Q
What would a legal positivist answer to the questions of taxation, assisted suicide, and preferential treatment in employment?
A
if it is the law, yes. if it is not the law, no.
7
Q
Positivists argue passionately for a _____ system that protects ____ and ____ institutions and prevents the abuse of ____ power
A
legal, liberty and democratic, political
8
Q
For positivists, the process of ____ is seen as more important than the specific _____ of the law
A
law, content
9
Q
Positivists draw a firm line between the practice of ___ and the practice of _____
A
law, politics
10
Q
what places are the proper place for debate in a positivists view?
A
House of Commons and legislative assembies of the province
11
Q
LAW is the outcome of _____ process, NOT a part of it
A
political
12
Q
Creating a dichotomy (difference) between the content of law and the content of politics gives increased what?
A
certainty, stability, and predictability
13
Q
Positivism is rooted under which 2 things?
A
1) British doctrine of parliamentary supremacy
2) Social contract
14
Q
British doctrine of parliamentary supremacy
A
doctrine explains that parliament is supreme. parliament can make/unmake any law and nobody can override this legislation
15
Q
Social contract
A
law that ties individuals to the collective through a binding, democratically constructed agreement
16
Q
Legal philosopher John Austins view on laws (positivist)
A
he believed all human laws had to conform to God-given laws
17
Q
H.L.A Harts view on law (positivist)
A
viewed law as a secular construction. He DID believe, like John Austin, that law and morality needed to be SEVERED for legal practice and legal analysis but he wasn’t blind to the injustices
18
Q
Principle of Nulla Poena Sine Lege (positivism)
A
there shall be no penalty without a valid law. Does not allow for repressive, retroactive law
19
Q
Does the natural law perspective put a dichotomy or a link between morality and law?
A
link
20
Q
Lex iniusta non est lex (natural law perspective)
A
an unjust law is no law at all
21
Q
Before the 20th century, what was the natural law theory based on?
A
Christian theology/Judeo-Christian values
22
Q
What is legal theorist Roger Cotterrell’s perspective on law? (natural law)
A
believes natural law is dead. first eclipsed by positivism then later by realist and Marxism. He believes its hard to determine WHAT is moral because everyone has a different idea of morality.
23
Q
How would the natural law perspective answer to the questions of taxation, assisted suicide, and preferential treatment in employment?
A
whatever is more morally right is what side they will be on.
24
Q
Natural law perspective
A
any law that is good is moral, and any moral law is good
25
When did the legal realist movement begin and why?
Began in the U.S. in early 20th century because of a reaction as an ongoing FAILURE of legal doctrine to predict legal outcomes in specific instances
26
Legal realists
referred to as skeptics; they say that to understand the legal process, one must know of the POLITICAL, ECONOMIC, and SOCIAL CONTEXTS in which law arises, changes, and persists
27
legal realist Karl Llewellyn's thought on realism
a method/technology for achieving a more grounded understanding of law and legal process.
28
Legal realism
a consequence of positivism. takes into account NOT JUST doctrinal developments but also the SOCIAL, POLITICAL, AND ECONOMIC BASES OF SPECIFIC LAW. Empirically based system of analysis
29
How would the legal realist perspective answer to the questions of taxation, assisted suicide, and preferential treatment in employment?
They would want to look into more information about the issues, specifically the SOCIAL, ECONOMIC, AND POLITICAL issues surrounding these amendments
30
Llewelyn described realist style of legal decision making as...
grand style judging
31
Grand style judging
precedents are persuasive but more is looked into, like the judge and what kind of person he is, the situation entirely.
32
Marxism
from Karl Marx. Belief that law is made from the conflict between labour and capital and that equality can only be reached with the violent overthrow of the capitalist system
33
dialectical materialism
from Karl Marx. doctrine that history progresses in stages that are based on the supremacy or different economic classes, in Marxisms case, communism replacing capitalism
34
How would the Marxist perspective answer to the questions of taxation, assisted suicide, and preferential treatment in employment?
for taxation, ABSOLUTELY! patient assisted, he can't answer it, and preferential treatment, yes.
35
Laissez-faire capitalism
doctrine that free market works to the greatest good WHEN left alone by the government
36
Critical legal perspective (when, where, purpose)
arose in U.S. law schools. late 1970's. critical theorists look to PURPOSES, VALUES, and ASSUMPTIONS of the legal system. They challenge their contemporary relevance, rationales, and validity.
37
Matters that are covered in critical legal that are not covered in legal realism
conceptualized matters in normative terms and (like Marxism) has pointed out issues of social disadvantages
38
How would the critical legal perspective answer to the questions of taxation, assisted suicide, and preferential treatment in employment?
taxation: yes
suicide: matter of personal choice and dignity
employment: advantageous
39
Suffragette
any woman in the early 20th century that was a member of a group DEMANDING voting rights and increased awareness on the issues by holding public protests.
40
What is the feminists argument?
that history and law were written from a male p.o.v. and that they do not reflect the CONTRIBUTIONS that women made to the structure of social life
41
Feminist theory of law
believe that both language and logic of law reinforces MALE values and female subordination
42
First wave feminism (date, issues, examples, who)
late 19/early 20th century. issues were on social and legal inequalities. Lack of access to educational opportunities, subordination in laws of marriage, and denial of right to vote. middle-class women whose challenge to legal order came from their OWN EXPERIENCES of injustice.
43
Second wave feminism (date, issues, examples, who)
late 1960/early 1970's. issues were on respect and control of women. Lack of access to BC, double standards of male and female sexual oppression, danger for working women, and discrimination of lesbians and women of colour.
44
Difference between first wave and second wave feminism
first wave feminists voiced their displeasure with LAWS that gave inequality. Second wave challenged the CULTURE of subordination of women and pushing change NOT JUST for law but for the living experiences of women in their private lives.
45
Legal realism is the consequence of
positivism
46
Marxism is a fusion of morality and ______
science
47
who made communism and what is it
Karl Marx. Where everyone works towards what they are able to and need and get paid FAIRLY for how much they contribute
48
third wave feminism
emerged from 1 and 2 wave feminism. This one gives a more RADICAL ANALYSIS of the ROLE OF LAW, and legal notions of REASONABLENESS, OBJECTIVITY, NEUTRALITY
49
Libertarians
19th century. Believed in freedom of the individuals from state control. Idea is that people should be permitted to run their own lives as they wish to.
50
Anarchist perspective on law and principle of egalitarianism
suspicious of all forms of state control. Believe all forms of government are unnecessary and oppressive, blaming gov. They are committed to the principle of egalitarianism which means the belief that the inequalities of wealth and power give rise to the state to abuse their power and oppress.
51
Sound epistemology (feminism)
feminist narratives - the storytelling of experiences of subordination by gender and their intersecting realms of class and race
52
Difference between libertarians and anarchism
anarchism relies on principle of egalitarianism, which is the belief that the inequalities of wealth and power give rise to the state to abuse their power and oppress. While libertarians focus on the rights of the individual and reject notions of social security
53
What was feminist legal theorist Catharine Mackinnons thoughts on POSITIVISM
also called positivism "mainstream legal theory" that hides a very explicit point of view behind what she called "point-of-viewlessness"
54
Magna Carta (1215)
Monarchy was turned into a democracy. Royal powers were no longer absolute.
55
Feudalism
the political and economic system that granted nobility and land IN EXCHANGE for the labour and military service of serfs on the land (abolished in 1666 in England)
56
End result of 7 years wars
Britain established itself as the dominant naval and colonial power within Europe
57
explain the Plains of Abraham
Sept 13, 1759. In the Seven Years' War. A British invasion force led by General James Wolfe defeated French troops, leading to the surrender of Québec to the British.
58
Royal Proclamation of 1763
a legal structure set out by the British Parliament to introduce English laws and courts. The hope was to have English settlers flood into Quebec to assimilate the French. This hope was not achieved.
59
Act of the Union (1840)
Unified upper and lower Canada
60
British North America Act/Constitution act (1867)
Canada's defining source of law
61
Domestic law
the law of a single nation-state
62
International law
law that is common to all nation-states
63
Canadian domestic law is classified as what (4)
1) Public
2) Private
3) Substantive
4) Procedural
64
Types of public law (4)
1) Constitutional
2) Criminal
3) Taxation
4) Administration
65
Types of private law (9)
1) Contracts
2) Real estate
3) Property
4) Family
5) Wills and trusts
6) Torts
7) Company
8) Law of agency
9) Patent law
66
Canadian law has been influenced by which 3 legal systems
British, French, and U.S.
67
British law prof Philip James said that to understand the SOURCES of Canadian law, we need to think of the influences as either ______ or ______. Define both
Principle or subsidiary.
Principle: legislative and case law (written judicial decisions)
Subsidiary: custom and books of authority (unwritten)
68
Who are the monarch representatives of Canada?
Governor general (fed) and lieutenant governors (prov)
69
Explain how a bill becomes passed
1) First reading: Gov introduces a bill to either H.o.C or Legislative Assembly
2) Second reading: minister responsible for proposal sets out the purpose of the legislation. Full debate. After sent to House or assembly. More debate. Public hearings.
3) Third reading: bill comes back to H.o.C. and there may be amendments and then hopefully passed with support.
70
Statute law
law that is enacted by elected legislatures (prov or fed)
71
If a federal legislation is being passed, what extra step must one do after the third reading to guarantee the bill being passed?
In third reading, the process must be repeated in the Senate before the bill is sent to governor general for approval
72
If a prov/terr legislation is being passed, what extra step must one do after the third reading to guarantee the bill being passed?
must be given to lieutenant governor of that prov/terr for approval
73
The two problems with judicial precedents
1) with looking back at cases and mixing it with the current one, courts and counsel may make ILLOGICAL DISTINCTIONS
2) the ability for courts, specifically SCC to reverse their decisions which ruins precedence.
74
Case law is...
the law that is established by decisions in SPECIFIC COURT CASES
75
Which source reports SCC judgements?
Supreme court reports
76
Which source reports judgements from SCC, prov courts of appeal and some county courts?
Dominion law reports
77
When editors reporting a case, they make a headnote. What is this?
a summary of the facts of the case, issues in dispute, and reasons for the courts decision
78
editors also write ratio decidendi. Define.
REASON for the decision, the judges determination of law in relation to the facts of the case
79
Obiter dicta
translation: statements, by the way!
legal pronouncements on issues not really relevant to the present case
80
what does the abbreviation "R" stand for in criminal cases?
Rex or Regina. King or queen of England.
81
explain each parts of this citation
R. v. Gunn and Ponak (1971), 5 C.C.C. (2d) 503 (B.C.C.A.)
Criminal case against Gunn and Ponak. Decided in 1971. found in vol 5 of Canadian Criminal Cases. 2nd edition and decision of the British Columbia Court of Appeal.
82
Explain CanLII and its purpose
CanLII is is the online product of the Canadian Legal Information Institute. Non-profit organization managed by Federation of Law societies of Canada. Purpose is to make Canadian law transparent for free on the internet
83
Coram
translation: court
84
Most forms of law derived from _____. Define.
Custom. The practices and patters of behaviour through which society had come to order itself.
85
The two authors of books of authority and what they each wrote
Coke: Institutes in 17th century
Blackstone: Commentaries in 18th century
86
How do books of authority contribute to courts today?
They look at these books to assist in the construction of judicial precedent. Also since the Charter, courts look for empirical and theoretical guidance.
87
The four sources of law
1) statute law
2) case law
3) custom
4) books of authority
88
What year did capital punishment become abolished and minimum terms of imprisonment because valid?
1976
89
"Faint hope clause"
it permitted the possibility of early parole for some people convicted of first and second-degree murder. It was abolished in 2011 by Stephen Harper's conservative government
90
3 grammatical principles of statutory interpretation
1) Expressio unius est exclusio alterius: explicit mention of one (thing) is the exclusion of another
2) ejusdem generis: Of the same kind or nature
3) noscitur a sociis: it is to be known by its associates
91
3 rules of interpretation
1) Plain meaning rule: read the statute LITERALLY
2) Golden rule: read the statute in CONTEXT. less strict like plain meaning.
3) Rule in Heydon's case: read the statute in accordance with its intentions
92
Rule in Heydon's case (statutory interpretaton) - 4 things to consider
1) state of the common law BEFORE the statute
2) MISCHIEF for which the common law did not provide
3) the REMEDY that parliament used to address the problem
4) TRUE REASON of the remedy
93
what does mischief literally mean in the Rule in Heydon's Case mean?
refers to the defect or limitation in legal control that the statute was intended to correct (think of goats falling in sea example p. 74)
94
Person's case of 1927 (in relation to statutory interpretation)
Five women went to the SCC to ask about s. 24 of the BNAA, 1867about whether "persons" included women too. SCC said it didn't. Then British Privy Council appealed and declared they were considered persons.
95
Stare decisis
translation: to stand by decided things
to stand by the decisions of higher courts
96
pro and con of stare decisis
pro: provides greater predictability of outcome and greater certainty concerning the application of law
con: illogical distinctions will be made in order to stay within pronouncements from the court of appeals and SCC
97
R. v. Morris
focused on constitutional law. treaty rights of the Tsartlip Indian Band in conflict with the prov wildlife legislation. S. 27 of the Wildlife Act of BC states no hunting with illuminating device during prohibited hours but Indian Band argues they are allowed and protected by treaty rights of the North Saanich Treaty of 1852
98
British North America Act, 1867
passed by the BRITISH Parliament. It united the provinces of Canada. Also provided for a national BICAMERAL PARLIAMENT comprising of an elected H.o.C and an appointed senate
99
The H.o.C. was to be based on the principle of representation by ________. The senate, on the principle of representation by ______.
population, region.
100
2 events that raised concerns about whether Canada was still a colony
1) In 1926, Mackenzie King's Liberal minority gov lost a vote of confident. He asked Lord Byng, GG, to dissolve parliament and hold general election. GG denied. Asked Arthur Meighen, conservative, to form gov. Didnt last. Parliament dissolved. new election. Mackenzie King Liberals won which EXPLOITED CANADIAN INDEPENDENCE as their main campaign issue
2) Nadan v. R.
101
Statute of Westminister, 1931
This statute effectively precluded British intervention into the affairs of Canada's central and prov gov
102
Bicameral Parliament
A leg body consisting of 2 houses that jointly enact laws for a country.
103
In Canada, the bicameral parliament is composed of...
1) H.o.C
| 2) Appointed senate
104
Constitution Act, 1982
when the constitution reached patriation and was free of British ruling
105
Patriation
a country assuming complete control of its own constitution.
106
Constitution act, 1982 had TWO significant additions to Canadian constitutional law
1) A formula to be applied in order to make future amendments to Canada's constitutional structure
2) legislation of Canadian Charter of Rights and Freedoms designed to be used by the courts to protect the rights of Canadian citizens (copy of U.S Bill of Rights)
107
the three sections of the amending formula that allows for the constitution to be changed
s. 38: Change requires support from H.o.C., Senate, and two-thirds of the provinces (that represent 50% of population
s. 41: requires the unanimity of the federal gov and ALL provincial gov's. every province therefore has a VETO
s. 43: consent of the federal gov and the province(s) affected, unaffected provinces have no say in the matter
108
seven-fifty formula
says that at least SEVEN provinces must approve constitutional reform
109
s. 91 vs s.92
s. 91: sets out the areas over which the federal government has jurisdiction
s. 92: jurisdictional powers given to the provinces
110
intra vires
Inside the jurisdiction
111
Ultra vires
outside the jurisdiction
112
cooperative federalism
An agreement between the central and regional governments to allow distribution of powers and recourses without conflict between the two powers
113
Which province rejected the Constitution Act, 1982 and what happened?
Quebec didn't agree with the act. Argued to SCC that they couldn't pass law without Quebec's consent. SCC dismissed this and said they didn't need their consent and enabled it anyways by April 1982.
114
Meech Lake Accord
June 3, 1987. This was the first of two attempts to get Quebec to agree to the Constitution (1982) since they rejected it before. Quebec would agree if this accord went by a couple conditions.
1) Be recognized as a distinct society
2) veto for Quebec on constitutional amendments
3) prov voice in appointments SCC
4) greater role for prov in the development of immigrant policy
THIS DID NOT SUCCEED
115
Criticisms of the Meech Lake Accord
1) that this was discussed between "eleven men in white suits" meaning there was no citizen involvement
2) Some people saw Quebec as nothing special to be a distinct society
116
The Charlottetown Accord
August 28, 1992. The second attempt to get Quebec to accept the Constitution Act, 1982. This accord addressed:
1) Issue of Quebec's representation with the Constitution
2) Proposed changes to; the senate, composition of H.o.C., Aboriginal rights, and the amending formula
117
Charter of Rights and Freedoms
Entrenched in Constitution Act, 1982. It requires the courts (judiciary) to set aside legislation that contravenes a protected right.
118
The Canadian Bill of Rights, 1960
Before the Charter, there was this. In 1960, the conservative government enacted this to protect the civil rights of Canadians. NOTE: this was NOT an entrenched constitutional doc. This was a FEDERAL statute; meaning it only applied to federal laws
119
Parliamentary supremacy
The doctrine that Parliament is the SUPREME lawmaker and that nobody has the legal right to override or set aside the law or parliament
120
(Bill of Rights) Some lawyers, judges, and politicians were worried by the possibility that the new law might be used to undermine the concept of ______ _______
Parliamentary supremacy
121
Fears of the supporters of parliamentary supremacy in regards to the Bill of Rights
fear that the Bill of Rights would move Canada closer to the U.S. model where judges act as the CHECK on the possibility of abuse of legislative power.
122
What were the two counter arguments towards the supporters of parliamentary supremacys fear in Canada moving closer to the U.S. model?
1) there is a core of values to which all Canadians subscribe to. This must be protected AT ALL TIMES.
2) Canadian judges were ALREADY involved in law making before the Bill of Rights so they cant say that ONLY legislatures had the exclusive right to create law
123
R. v. Drybones (1969) and how it applied to the Bill of Rights (1960) and Indian Act
A Canadian NATIVE was found drunk off a reserve that had violated s. 94 (b) of the Indian Act. His council said that this was discriminatory on the basis of race and thats. 1 (b) of the Bill of Rights PROHIBITS discrimination on the basis of race. The Indian Act created an offence where only NATIVE Canadians could could be charged and convicted
124
Canada (A.G) v. Lavell and how this applied to the Indian Act and Bill of Rights
Jeannette Lavel brought to the courts that she felt discriminated for her gender. This is because in the Indian Act, if a female band members married non-status Indians then that woman would have her name STRUCK from the Indian registry but not vice versa. S. 1 of the Bill of Rights says that gender shall not be discriminated and that s. 12(1)(b) of the Indian Act did just that.
125
What was the final decision in Canada (A.G) v. Ladell and what did that make people think?
The SCC held that there was NO violation and that the Bill of Rights can't apply. This was a contradictory decision than what was decided for R. v. Drybones. The decision in this court case made the role of the Bill of Rights UNCLEAR
126
S. 1 of the Charter is referred to as the....
Define as well
limitations clause. This means that the Charter makes sure that no RIGHT is ABSOLUTE. That the prescription of law can take the right away as long as it is justified in a free and democratic society
127
S.1 of the Charter has a 2 part test to determine whether fed/prov law can OVERRIDE the Charter. Explain both
1) the fed/prov statute's limits on rights must be REASONABLE and PRESCRIBED BY LAW
2) the limits must be demonstrably JUSTIFIED in a FREE and DEMOCRATIC SOCIETY
128
In R. v. Oakes, Chief Justice Dickson wrote that to even pass the 2 part test of s.1 of the Charter to be allowed to override it, there must be a form of PROPORTIONALITY test. What were his 3 important components of this test?
1) They must be carefully designed to achieve the objective in question and not be on irrational considerations
2) the means should IMPAIR as little as possible the right/freedom in question
3) there MUST be a measure between effects of measures and the objective which has been identified as of sufficient importance
129
R. v. Oakes
Accused was charged with possession of a narcotic for the PURPOSE OF TRAFFICKING. Accused argued that s. 8 of the Narcotic Control Act was unconstitutional because it undermined the presumption of innocence in criminal cases and therefore not getting the right to a fair trial. SCC agreed that s.8 failed the test of proportionality
130
11(d) of the Charter
Everyone must get a fair trial
131
the 2 obstacles that the limitations clause presents for people trying to use the Charter to make social change
1) the cost of taking a claim of criminal to a provincial court of appeal or the SCC is PROHIBITED for most people.
2) there are few circumstances where precedence exists so there existing government policies end up challenged
132
Halpern v. R. (2003)
This challenged the constitutionality of legislation prohibiting same sex marriage. AGC made three reasons for marriage which were:
1) uniting opposite sex - this means opposite sex relationships are favoured more.
2) encouraging the birth and raising of children - not being able to have children being homosexual
3) Companionship - encouraging this ONLY between opposite sex couples implies that same sex couples are not as capable.
This violates couples rights under s. 15(1) of Charter than cannot be saved under s. 1 of the Charter.
133
s. 2 of the Charter
2. Fundamental freedoms of
a. conscience and religion
b. thought, belief, opinion and expression, incl. freedom of the press and other media of communication
c. peaceful assembly
d. association
134
peace, order and good government is part of which statute
s. 91
135
Saumar v. City of Quebec (1953)
SCC had to respond to a Quebec City bylaw that made a legislation where the chief of police had to give permission before pamphlets could be distributed on city streets. The court struck this down because it interfered with federal power in relation to FREE SPEECH
136
R. v. Butler
Butler owned a sex shop that promoted violence. SCC said that the obscenity provisions in the Criminal Code do OFFEND s. 2(b) of the Charter, these controls over his shop are justified by s.1 of the Charter, the limitations clause. FREEDOM OF EXPRESSION
137
RJR-Macdonald v. Canada (A.G)
the Quebec Superior Court was asked to rule on the constitutionality of the federal prohibition against the advertising of tobacco products. Held: since there is not cause and effect proof of no advertising leading to less smokers, the limitation on freedom of expression for this situation was not justified. Since tobacco is a LEGAL product, it violates s. 2(b) of the Charter and cant be justified under s. 1
138
s. 3 of Charter (dem rights)
Every citizen of Canada has the right to vote in an election of members of the H.o.C. or of a legislative assembly and to be qualified for membership therein.
139
s. 4(1) and s. 4(2) (dem rights)
(1) - no H.o.C. AND no legislative assembly shall continue for longer that FIVE YEARS
(2) - in time of real war or invasion, H.o.C. may be CONTINUED by parliament and a legislative assembly may be continued by the leg beyond five years but ONLY IF the continuation is NOT opposed by more than one-third of the member of the H.o.C. or the legislative assembly
140
s. 5 of the charter (dem rights)
There will be a sitting of Parliament and of each legislature at least ONCE every TWELVE months
141
s. 6 of Charter (Mobility rights)
(1) Every citizen has the right to ENTER, REMAIN in and LEAVE Canada
(2) Every citizen and PR has the right
a. to move & take up residence in any prov
b. to pursue livelihood in any prov
THERE'S MORE ON THIS PAGE 124
142
s. 7 of Charter (legal rights)
Everyone has right to LIFE, LIBERTY AND SECURITY and can not have this taken away unless in accordance to the principle of fundamental justice
143
s. 8 of Charter (legal rights)
Everyone has the right to be SECURE against UNREASONABLE search and seizure
144
s. 9 of Charter (legal rights)
Everyone has the right to NOT BE arbitrarily detained or imprisoned
145
s. 10 of Charter (legal rights)
everyone has the right on arrest:
a. to be unformed of the reasons
b. to retain and instruct counsel WITHOUT delay and to be INFORMED of that right.
c. to have the validity of the arrest determined by HEBEAS CORPUS
146
Habeas Corpus
a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful
147
s. 11 of Charter (legal rights)
READ PAGE 124 but its about rights when charged with an OFFENCE
148
s. 12 of the Charter (legal rights)
no cruel and unusual punishment
149
s. 13 of the Charter (legal rights)
A witness can NOT be incriminated UNLESS in a prosecution for perjury (lying to court) OR for the giving of contradictory evidence
150
s. 14 of the Charter (legal rights)
someone that can't speak the language or is deaf can have an interpreter
151
R. v. Morgentaler
about s. 7 of charter. He said that denying women the choice to an abortion violated their s. 7 charter rights. Held: majority accepted that a womans inability to control the termination of her pregnancy constituted an unjustifiable loss of "life, liberty, and security"
152
R. v. Hebert
the accused exercised his right to retain counsel and told police he DID NOT want to make any statement. Later on he made an incriminating statement to an undercover PO. s. 7 was violated. Statement was not valid.
153
R. v. Askov
accused was charged with offences involving weapons and alleged threats of bodily harm. 34 months passed from when he was arrested to when he went to trial. Due to delay, he was dismissed.
154
R. v. Smith
court held that in some circumstances, the penalty of SEVEN years imprisonment could be seen as grossly disproportionate to the offence committed. This violated s. 12 of the charter (bitch you better know what s.12 is)
155
In 1987, s. 12 of the Charter was used to strike down a section of the Narcotic Control Act. Which section?
the section that required the MIN term of SEVEN years imprisonment for importing any amount of a narcotic
156
What year was capital punishment abolished in Canada?
1976
157
s. 15(1) and s. 15(2)
(1) everyone is equal under and before the law and has the right to equal protection and benefit of the law WITHOUT discrimination
(2) this does not include laws, programs, or activities aimed at targeting a disadvantaged group to better support. ex. seniors discount, no voting until 18, etc.
158
Andrews v. Law Society of British Columbia
andrew claimed that the REQUIREMENT of Canadian citizenship for the practice of law in BC consitutes a denial of equality before the law. Held: majority decided that this inequality could not be justified by s. 1 of the Charter. Based on s. 15(1)
159
R. v. Kapp
these guys argued that they inability to participate in a communal fishery granted ONLY to Aboriginals was denial of equality. They based their claims on s. 15(1) but it could not succeed because the communal fishery goes under s. 15(2).
160
s. 16 - s. 22 of Charter
Based on language rights
161
s. 23 of Charter
based on minority language educational rights
162
s. 24(1) and s. 24(2) of Charter
(1) anyones rights or freedoms that have been denied may apply to a court of competent jurisdiction
(2) If the court finds evidence that breached charter rights, that evidence will be excluded
163
TRUE OR FALSE
good-faith errors by the popo will not lead to exclusion of evidence, but intentional violations of the Charter will
True
164
R. v. Greffe
police arrested the accused for a narcotics offence, but it started off with traffic tickets, then after checking his bum bum, they found heroine. This would bring the administration of justice into disrepute since it infringed s. 24(2) of the Charter so the evidence was excluded
165
R. v. Simmons
accused was searched at airport and the cops failed to inform her of her right to a lawyer and they checked her body and found drugs taped to her. The police argued that they DID NOT KNOW that they had to inform her of her rights and therefore, seeing as they made a good-faith error, the evidence was NOT excluded, it was admitted
166
notwithstanding clause
s. 33 of Charter allows leg to enact laws that "override" the rights and freedoms in the charter by stating that the leg will operate regardless of infringement
167
Criticisms of the Charter (7)
1) it diminishes parliamentary supremacy
2) s. 7 - 14 makes police work harder to catch and arrest criminals
3) minimizes importance of collective rights
4) upholds individuals rights against the public good
no guarantee of the protection of civil liberties
5) taken pol issues out of citizens hands and given to judiciary
6) permitted the "legalization of pol"
7) s. 33 diminishes Charter strength as a constitutional document
168
Impact of colonization for Haida people (10)
```
smallpox
residential school
the “Indian Act” and imposed
identities
the reserve system
language
the potlatch ban
racism & shame
cultural losses
imposed governance systems
the 60’s scoop
```
169
Haida: anything better today? (4)
```
Reserve system- no clean drinking
water, sewage systems, overcrowding
Underfunded education
Extremely high suicide rates
Chronic health issues
```
170
Haida law: Yahguudang
all acts must be done with RESPECT
171
Haida law: Ad Kyaanang
All acts must be done with CONSENT
172
Haida law: Tllyahda
If an act is not done with respect or consent, or is
| witnessed, you must make it right
173
Haida law: Gina ‘waadluxaan gud ad kwaagid
Everything depends on everything else
174
Defining characteristics of Canada's legal system (4)
1) Separation of powers between legislation, executive, and judicial (BNAA)
2) Pluralist
3) bilingual
4) federal state model with prov/fed gov
175
Legislative branch
ENACTS leg. Provincial = legislative assembly. Federal = H.o.C and Senate
176
Executive branch
IMPLEMENTS leg. Includes PM (federal)
177
Constitution Act, 1791
UK law that divided Quebec into upper and lower Canada.
178
Judicial branch
interprets law
179
Why is Canada a PLURALIST legal system
1) Common law
2) Civil law
3) Indigenous and Aboriginal laws
180
Indian Act (1876)
UK law that allows gov to control most aspects of Aboriginal life
