Protecting Rights (10)

Question 1

What did Trudeau say about a constitutional charter?

Answer 1

A constitutional charter is in keeping with purest liberalism, according to which all members of a civil society enjoy certain fundamental, inalienable rights and cannot be deprived of them by an collectivity

Question 2

How do we get citizenship and rights? (3)

Answer 2

Birth

Immigration, Naturalization and Citizenship (move to a country and, after spending a certain amount of time there, apply for citizenship)

Parents apply for citizenship and you get it

Question 3

How can you lose citizenship? (3)

Answer 3

You can renounce your citizenship

Government can revoke your citizenship

Not a citizen if born in Canada by foreign diplomats

Question 4

What is the Canadian Charter of Rights and Freedoms?

Answer 4

A list of rights that are entrenched in the Constitution and available to every citizen

S. 2 contains fundamental freedoms

S. 7-14 contains legal rights

S. 15 contains equality rights

Question 5

What are some qualifications on rights? (2)

Answer 5

Section 33 - the notwithstanding clause which allows state to declare a law temporarily apply to everyone notwithstanding whether it violates their charter rights; includes sunset clause which requires the law to be evaluated every 5 years

Section 1 test - can challenge a violation of your charter rights, but you have to prove that a violation did take place then take the section 1 test that proves it wasn’t a reasonable constraint for the better of society

Question 6

What did L’Heureux-Dube say about the Constitutionalization of equality? Describe the persons case.

Answer 6

She focuses on the role of women in the struggle for equality, especially in classisms British society

1927, 5 women from Alberta contest the the fact that women weren’t legally persons and therefor couldn’t be appointed to senate (which impacts their ability to own property, etc)

Lost the case in SCC but won in the Privy Council

Question 7

Describe the Bliss v Canada case (3)

Answer 7

An unemployed and pregnant woman applied for benefits as she’d need help throughout her pregnancy

Court chose to focus on the fact that she was unemployed over the fact that she was pregnant, holding that denying women benefits during pregnancy is okay because it treated all unemployed people the same way

This is unfair as pregnancy is a uniquely female thing (often seen in law like in sexual assault cases)

Question 8

Describe the Chronology of rights legislation (5)

Answer 8

Starts in post-WW2 as it showed how terrible things can go when rights are only given to some

1948 - Universal Declaration of Human Rights which was the first global declaration of rights

1944 - Ontario Racial Discrimination Act

1960 - Canadian Bill of Rights (first three hold no constitutional force so there’s no real protection)

1982 - CCRF, entrenched in the constitution

Question 9

What are the 4 factors of the international human rights Canadian approach to rights?

Answer 9

Emphasizes the idea that people should be free from an intrusive state and treated with dignity, and have necessary means for full and equal participation in society

Requires balancing the rights of individuals with the collections social interest

Recognizes that there are groups in society that may need special protection

Emphasizes that society should be free from discrimination

Question 10

What are women’s role in the Charter? (3)

Answer 10

Women’s rights groups such as the Legal Education and Action Fund lobbied for:

Broader language of equality

Stringent judicial review of gender based discrimination

Inclusion in charter of a general statement of equality between men and women

Question 11

Describe the case of Andrews v Law Society of BC (2)

Answer 11

White male lawyer from Britain was denied the license to practice law in BC because he wasn’t a Canadian citizen

LEAF intervened and argued for substantive equality in his case

Question 12

What is substantive equality?

Answer 12

Equality of opportunity and result, as opposed to similar treatment of simarly-situated individuals

I don’t want to be considered equal to other poor people, I want to be considered equal to rich people

Question 13

What did the SCC hold that the purpose of section 15 was? (2)

Answer 13

The protection and promotion of substantive equality as charter’s equality provisions have large remedial components (legislatures must take positive measures to improve the status of disadvantaged groups)

Means they need to make sure that when the door is opened for them they are equipped and able to make it in the room

Question 14

What did L’Heureux-Dube says about equality and legal fields? (5)

Answer 14

Focus on equality has impacted all legal fields in Canada

Criminal Law: rape shield ruling

Family Law: taxation of child support

Employment Law: anti-discrimination in workplace

Tort Law: inclusion of importance of women’s experience in law’s development

Question 15

Describe the case of Baker v Canada (4)

Answer 15

Jamaican woman came to Canada on a visitor Visa in 1981, stayed and worked in Canada and having many children here

In 1992 she received a letter ordering her deportation for outstaying her visa

She requested an exemption from immigration rules on Humanitarian and Compassionate Grounds as 2/8 of her children living with her were born here and would suffer if she was deported

She was denied the exemption but appealed to the SCC, stating she was denied an in-person interview, wasn’t given reasons and was biased against

Question 16

What are the five factors key to common law duty of procedural fairness in H&C cases?

Answer 16

1. The nature of the decision being made and the process followed in making it (is the practice quasi-judicial?)
2. The nature of the relevant statutory scheme (is there a right of appeal?)
3. The importance of the decision to those affected by it (the greater the importance, the more necessary the fairness)
4. The legitimate expectations of the claimant (do they expect a certain procedure to be followed and result be reached? Any promises made?)
5. The choice of procedures made by the decision-makers and any relevant institutional constraints (important but not determinative)

Question 17

What are the values underlying the duty of procedural fairness?

Answer 17

Individuals affected should have the opportunity to present their case fairly and fully, and have decisions affecting them made in a fair impartial and open process

Question 18

What happened in the Baker case?

Answer 18

While she wasn’t guaranteed an interview and the reasons were written in the junior officers reports, there was reasonable bias in the report so she won the case