PowerPoint 2 Flashcards
2 views of what a constitution should protect:
- Liberalism.
2. Communitarianism.
Libertarianism
Ideas of individual liberty, constitutionally limited government, peace, and reliance on the institutions of civil society and the free market for social order and economic prosperity.
Humanitarianism
Protection of the community, as opposed to libertarianism.
Communitarianism
Emphasizes the need to balance individual rights and interests with that of the community as a whole, and argues that individual people (or citizens) are shaped by the cultures and values of their communities.
Social Contract Theory
Addresses the questions of the origin of society and the legitimacy of the authority of the state over the individual.
Constitutionalism comes from the ___ ___ ___.
Social Contract Theory.
Can corporations possess rights?
Yes.
What does the term “person” include?
Living people and corporations.
What does the term “individual” or “citizen” include?
Living people, not corporations.
What sorts of things are included in the Charter?
- Freedom of religion.
- Freedom of expression.
- Democratic rights.
- Freedom of mobility.
- Life, liberty, and “security of person.”
- Right to equality.
Interests not protected by the Charter:
Economic and property interests.
Example of corporations arguing freedom of expression:
Corporations “nagging” children through advertising to buy toys.
Example of corporations arguing freedom of religion:
Corporations arguing that they should be able to be open on Sunday.
Harm Principle
Examines the harm that the action could cause people. Child pornography fulfils the harm principle, but normal pornography does not.
What is an argument against judges making decisions?
They are not elected, they are appointed. They have a secure job until 75.
The Charter is about ___, not ___.
The government leaving you alone, not what the government owes you.
Are corporations allowed to donate as much as they want to political parties?
No, there is a restriction on how much persons (individuals or corporations) can donate to political parties.
Freedom of Assembly
Ability to protest.
The Charter of Rights and Freedoms only applies against…
Government entities or government action.
Does Charter apply to cases of discrimination in the workplace or for a service?
No, it is covered by human rights tribunals.
Section 1 of Charter
It is okay for the government to violate certain rights in society.
Section 33 of Charter
Legislatures can pass acts that infringe on rights “notwithstanding” the Charter but legislation must be reviewed every 5 years. Notwithstanding Clauses.
Notwithstanding Clauses
Government can ignore courts.
Quebec has one notwithstanding clause that is renewed every 5 years.
Quebec should be bilingual under the Charter. However, only French is required.
Parliamentary Supremacy
MP’s are elected and accountable. Judges are appointed and unaccountable. Ultimate authority should rest with parliament.
Charter Dialogue
Parliament creates laws through legislation. Courts identify Charter violations. Parliament may respond by amending or enacting laws to conform with Charter.
Court of Queen’s Bench
- Family law.
- Civil matters/tort.
- Criminal.
In the Court of Queen’s Bench, how many judges are there?
One.
What is the difference between provincial court and Court of Queen’s Bench.
- In civil court, anything below $25,000 goes to provincial court, while anything above goes to Court of Queen’s Bench.
- Court of Queen’s Bench can grant divorce.
- No jury in provincial court.
Which court is higher? The provincial court or the Court of Queen’s Bench?
The Court of Queen’s Bench.
Which court is easier and cheaper to deal with (Court of Queen’s Bench or provincial court)?
Provincial court.
Summary offences are tried in ___.
Provincial court.
Indictable offences are tried in ___.
Court of Queen’s Bench.
What is the difference between trial courts and appellate courts?
With trial courts, you are entitled to a trial, but with appellate courts, you must convince the courts that you deserve another trial.
What is a good appeal?
Judge did not interpret case properly. Appeal is questioning legal question. Needs to be a legal argument.
What is a bad appeal?
Judge got facts wrong. That did not happen.
How many judges are in the appellate court?
Three.
Do decisions in appellate court have to be unanimous?
No. Majority wins.
What is the judge called when they are not in the majority?
Dissenting judge.
When most but not all judges agree to a decision, the decision is called a…
Majority decision.
After the appellate courts, where can you appeal the decision?
SCC.
How many judges are with the SCC?
9.
Why are there federal courts?
Because of the Constitution. Some things are federal law, and must be isolated.
What is dealt with by the Federal Court of Canada?
Tax, copyright, members of armed forces, or immigration disputes.
Are criminal matters heard in federal courts because the federal government deals with the Criminal Code?
No, they are heard by the provincial courts.
Who can sue?
Adult people, even non-Canadians. Some organizations, but usually not unincorporated associations. Special rules apply when suing government.
Can you sue the government?
No. Basic argument of the Crown of Unity is that people cannot sue the Crown.
Who can act as legal representation?
- Self-representation.
- Lawyer.
- Paralegal.
Differences between lawyers and paralegals:
- Paralegals may be less expensive than lawyers.
- Paralegals may be more specialized in their areas.
- Lawyers can assist on a wide variety of matters, while paralegals are restricted in their practice options.
- Not all provinces yet require Paralegals to be licensed.
- Paralegals may not work on contingency fee basis
Class Action Lawsuits
Group litigation. Allows a single person or small group to sue on behalf of a larger group of claimants.
Benefits of class action lawsuits:
- Allows small individuals to take on large organizations.
- Cost effective way to sue for small but widespread claims.
- May curtail big business behaviour.
- Promotes citizen empowerment and deliberation.
- Powerful as historical record where victims have opportunity to tell story in public proceeding.
Criteria for class action lawsuits:
- Common issues among all class members.
- Representative plaintiff who demonstrates workable plan and fairly represents all interests.
- Notification to all potential members of class.
- Preferable procedure to traditional litigation.
- Certification by court to allow class action to proceed.
Why is certification important in class action lawsuits?
Once certified, corporations would normally settle.
