smaller law test unit 2

Question 1

Explain how constitutional law developed in Canada.

Answer 1

British North America Act, 1867
Made Canada a nation, independent of Britain
Passed in Britain; B. kept power to pass laws

Statute of Westminster, 1931
Allowed Canada to pass own laws, conduct foreign affairs
Still could not amend BNA Act

Constitution Act, 1982
BNA Act transferred to Canada, renamed
Added Charter of Rights and Freedoms
Amending formula: could change with agreement of 7 provinces equally at least 50% of population

Question 2

What is the BNA Act?

Answer 2

British North America Act, 1867
Made Canada a nation, independent of Britain
Passed in Britain; B. kept power to pass laws
Explained how Canada’s government was going to be set up

Different from the British - A really strong Federal government and very strong provincial governments
There had to be jurisdictions set up - the feds couldn’t do everything
Creation sections 91 and 92 - gave the provinces and the federal government jurisdiction over certain things

Question 3

Give some examples (3 for each) of the division of power between the Federal and Provincial Governments.

Answer 3

Federal -
RCMP
Canada Post
Banking
Indigenous Affairs
Criminal Law
Marriage and Divorce
Military

Provincies-
Civil Law
Education
Health Care
Roads
Hospitals
Money from the feds but under the provincial government

Question 4

What level of government passes bylaws?

Answer 4

Municipal government
Parking, parking at certain times
Dog licenses

Question 5

What is the highest court in Canada?

Answer 5

The Supreme Court of Canada
Only hears appeals - can’t start a case here

Question 6

Why was the Statute of Westminster important?

Answer 6

Allowed Canada to pass their own laws and conduct foreign affairs
In 1931 it got put through, allowing us to actually create our own laws and deal with our own international affairs
We became much more independent

We still can’t amend our own constitution under this statute at this point

Question 7

What Prime Minister brought in the “The Charter of Rights and Freedoms”?

Answer 7

Pierre Elliot Trudeau

Question 8

Give 2 limitations of the Bill of Rights.

Answer 8

This only applies to federal laws - not provincial ones
You could change it - any legislator sitting could change it any time, not very strong

But was the precursor to our charter

Question 9

What does Section 2 of the Charter of Rights and Freedoms give us?

Answer 9

These are called our “Fundamental Freedoms”

Freedom of Religion (2a)
Freedom of Thought and Expression (2b)
Freedom of Peaceful Assembly (2c)
Freedom of Association (2d)

Question 10

Why is section 15 of the CRF so important?

Answer 10

Equality Rights - allow us to not be discriminated against for many things
Ie. Age, gender, religion, sex, sexual orientation, etc

Question 11

Why was section 33 the “Notwithstanding Clause” put into the Charter?

Answer 11

Overrides Section 2, 7-15, of the charter
Was put in so that the provinces would agree to sign off on the charter despite the power it would give to the Supreme Courts
Quebec uses it the most (Bill 21)

Question 12

What year was the Charter put into the Constitution?

Answer 12

1982

Question 13

How has the Supreme Court expanded its power since 1982?

Answer 13

It’s now given rights over parliament when it comes to changing laws
Problem: there is less power to the people, decisions made by the government
- Judicial Biases

Question 14

Why is discrimination different from stereotyping?

Answer 14

Discrimination is the action involved
Stereotyping is a thought
Ig. A pizza place doesn’t hire men as servers - discrimination based on gender
- They can think guys are stupid but cannot put it into action

Question 15

What are mobility rights?

Answer 15

Section 6
Ability to move around and leave the country being that the other country wants you there
If you have a criminal record you may not be able to move around

Question 16

What has the international community done about the Human Rights abuses faced by the Rohingya and the Uyghurs?

Answer 16

Uyghurs -
United Nations member countries have called on Beijing to end its systematic human rights abuses towards the Uyghurs
In a landmark ruling in 2022, the UN’s committee on racial discrimination strongly condemned China’s persecution of Uyghurs and referred the case to the UN Secretary-General’s Special Adviser on the Responsibility to Protect.

Rohingya -
Canada officially recognized the treatment of the Rohingya people as a genocide
Canada pledged 1 million dollars for relief support
Other countries such as the USA and parts of Europe have also acknowledged it as genocide
Many countries including Australia, Austria, Afghanistan, Belgium etc, expressed support for the Rohingya people and offered humanitarian aid
China, however, expressed support for Myanmar instead

Question 17

Why did First Nations leaders oppose the “White Papers?

Answer 17

Pierre Elliot Trudeau tried to change the Indian Act because of how detrimental it was to Indigenous people

In doing so, they removed Indian status and took away the little protection Indigenous people were given in the Indian Act

This is why the White Papers never went through but demonstrates that progress was tried to be made, just poorly done

Question 18

What was the Indian Act?

Answer 18

The first act that was created by the federal government regarding how to control or oversee the Indigenous people of Canada

Includes the residential school system, management of Indigenous lands, and reservations, put them under federal jurisdiction - Indian Agents overseeing what going on, etc

Control on every facet of their life

Question 19

Under which level of government will you find First Nations issues being dealt with?

Answer 19

The Federal government

Question 20

What is judicial activism and why is it a controversial issue in Canada?

Answer 20

Judicial Activism - the idea that judges have their own biases and can bring them into court
This is a problem because the judges have so much power in Canada due to The Charter of Rights and Freedoms gave them this power

Question 21

Give an example of human rights theories from the Theorists we studied in class.

Answer 21

John Locke: Life, Liberty & Private Property

JJ Reassou: Social Contract (between the people and their government )

Kant: Moral Law

Harriet Taylor Mill: Equality in all rights

Karl Marx: Marxism

Question 22

Land Claims:

Answer 22

Formal demands made by Aboriginal peoples for ownership and control of lands on which they live or have traditionally lived

Question 23

Entrenchment:

Answer 23

To protect and guarantee a right or freedom by ensuring that it can only be changed by an amendment to the Constitution.

Question 24

Cultural Genocide (Indigenous groups):

Answer 24

Genocide is killing people, in cultural genocide you are going after the culture specifically (ie. Indian Act).

Question 25

Strike Down:

Answer 25

Strike Down – the law is no longer valid or Read Down

Question 26

Collective Rights:

Answer 26

rights acquired as a result of membership in a group; all members of the group share the same rights.

Question 27

TRC:

Answer 27

The TRC was created due to the Indian Residential Schools Settlement Agreement, which was one of the largest settlement packages for survivors of residential schools.

TRC lets Residential School survivors share their personal experiences.

The government of Canada provided $72 million to support TRC and 6 years of travelling to all parts of Canada, hearing from over 6,500 witnesses.

Created a historical record of the residential school system. Its mandate was to inform Canadians about what happened in residential schools.

Question 28

Social Contract:

Answer 28

The Social Contract is that the government attains its right to exist and to govern by “the consent of the governed.

Rousseau’s social contract theory says people give up some freedom to a group in return for the safety and protection of their basic rights.

In human rights law, it means governments must respect people’s rights and freedoms, with the people’s agreement.

It stresses equality, freedom, and the people’s common wishes as key to a fair society under this agreement.

Question 29

Discrimination:

Answer 29

The actual action of making a distinction between people and treating them differently on a basis other than individual merit.

Question 30

Freedom:

Answer 30

The right to conduct one’s affairs without governmental interference.

Question 31

Right:

Answer 31

A legal, moral, or social entitlement that citizens can expect, mainly from the government.

Question 32

Moral Law:

Answer 32

Kant maintained that each of us has a worth or a dignity that must be respected.

This dignity makes it wrong for others to abuse us or to use us against our will.

Kant expressed this idea in a moral principle: “Humanity must always be treated as an end, not merely as a means.”

Thus, people’s human rights should be upheld not because of what they can offer society, but simply because it is moral to do so.

Question 33

Prejudice:

Answer 33

A preconceived opinion based on a stereotype or inadequate information.

Question 34

Stereotype:

Answer 34

An oversimplified, standardized, or fixed judgment of a group of people.

Question 35

Marxism:

Answer 35

Human rights promote the interests of the ruling, high classes in society (the property-owning individuals in the capitalist system).

Our rights such as freedom of speech and property rights are created to maintain our existing unjust social order.

The nature of the rights is selfish and gives certain individuals authority to ensure that the actions of others do not conflict with their own interests.

Karl Marx believed that human rights were not solutions to achieving equality and justice. Marx’s solution to equality was abolishing the class system.

Question 36

Notwithstanding Clause:

Answer 36

s. 33 of the Canadian Charter of Rights and Freedoms, which allows federal and provincial governments to pass legislation that is exempt from s. 2 and ss. 7 to 15 of the charter.

Question 37

The White Papers.

Answer 37

Pierre Elliot Trudeau and his Indian Affairs Minister tried to fix the Indian Act with this

Take away the Indian Law and create a new law. This law was created in order to achieve equality (NOT equity - which was bad) for all Canadians by eliminating “Indian” as a legal status.

Strived to make everyone to same - Indigenous lose their Indian status and become one with society.

This was bad because when Indigenous peoples go out into society without their Indian Status, they would lose the controls and resources (social safety) from the Indian Act →they would be left with poverty and poor education with their lack of education from before.

Created for equality among all Canadian First Nations by giving them their rights back that the Indian Act took away, but was eventually rejected.

Question 38

Reasonable Limits:

Answer 38

The idea that all rights and freedoms are not absolute and have limitations in a free and democratic society. For example, although you have the Right to Free Speech, you cannot spew hate speech.

Question 39

Indian Act:
(definition)

Answer 39

a number of colonial laws whose purpose was to terminate First Nation culture and further push euro-Canadian society.

Question 40

Amending Formula:

Answer 40

a method for making changes to a constitution in Canada’s case, a method that would no longer involve the British parliament

Question 41

Federalism:

Answer 41

Canada’s form of political organization in which the federal government governs the country as a whole, while the provinces and territories have specific, limited powers.

Question 42

The Evolution of Canada Worksheet

Answer 42

1. Statute of Westminster, 1931
2. Patriation and Constitution
3. The Meech Lake Accord
4. The Charlottetown Accord
5. The 1995 Quebec Referendum

Question 43

Different political and economic systems view these rights differently
(Communism vs. Capitalism)

Answer 43

Communism
- Use of Law to ensure a fair distribution of social and economic wealth

Capitalism
- Minimal state intervention and maximum freedom of the marketplace.

Question 44

These views of human rights can be transferred to our philosophers.
(Positive Rights vs. Natural Rights)

Answer 44

Positive Rights
- Shaped by political authority
- Tied to the collective well-being of society

Natural Rights
- Enduring and universal
- Subject to minimal or no limitation
- Often used as a rationale for civil disobedience

Question 45

There are Four Types of Civil Liberties:

Answer 45

1. Political Liberties
2. Legal Liberties
3. Economic Liberties
4. Egalitarian Liberties

Question 46

Section 1

Answer 46

• The rights in the Charter are guaranteed “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”
• So although you are guaranteed these rights, they have limits. “Here are your rights to a certain extent.”
• For example, although you have freedom of speech, you can’t spew hate speech.
• Any limits imposed on rights and freedoms by s.1 must meet two basic tests: (1) the limit must be important, and (2) the limit just be reasonable and justified for the benefit of society as a whole.

Question 47

Section 2 a)

Answer 47

• The Freedom of Conscience and Religion, meaning you can entertain the religious beliefs that you want, and declare them openly through practice, worship, teaching, and dissemination. You can not be forced to act in any way that goes against your beliefs or conscience.
• For example, you have a right to declare your religious beliefs openly through religious clothing.
• Limit - You can’t force your beliefs on someone else, if you’re religion involves animal sacrifice, etc there’s a limit to that

Question 48

Section 2 b)

Answer 48

• The Freedom of Thought and Expression, meaning you are free to think and believe what you want and publicly express your opinions through writing, speech, painting, photography, and other methods. Includes freedom of the press and media because they communicate issues to the public.
• For example, you have a right to publicly express your own thoughts and create pieces of writing that explore those ideas without restraint on what you can or cannot write.
• Limit - If it incites violence if it incites hate, etc

Question 49

Section 2 c)

Answer 49

• The Freedom of Peaceful Assembly, meaning people are allowed to assemble and march against a government or for a cause as long as the assembly is peaceful and not considered a riot.
• For example, you have a right to participate in a protest that supports abortion rights as long as it is peaceful.

Question 50

Section 2 d)

Answer 50

• The Freedom of Association, means people are allowed to connect with other people or groups such as unions, political parties, cultural groups, educational organizations, or sports clubs.
• For example, you have a right to meet with your basketball team and connect with them.
• Limit - As soon as your rights get put into action, your rights can be overturned

Question 51

Section 3

Answer 51

• The Right to Vote in an election and run for office, meaning if you are of the proper age, mental capacity, residence, and registration you can vote in an election. It is also the right for a government to be booted out after a certain number of years.
• For example, if you are over 18, are mentally stable, live in Canada, and register to vote, you have the right to vote.
• Limits - You have to be 18 to vote, and you can only be in office for so long before there’s a re-election, etc

Question 52

Section 6

Answer 52

• The Right to Mobility means that Canadian citizens can move in and out of the country and between provinces.
• For example, if you’d like to go on a vacation to the Bahamas, you have the right to do so. If you are offered a new job somewhere etc, can’t afford you’re current location
• Limits - The other country has to want you there. The states don’t accept people with a certain criminal record

Question 53

Section 7

Answer 53

• The Right to Life, Liberty, and Security of the Person, meaning that as a human being your personal autonomy and bodily integrity are protected from laws.
• Security - Can mean job security
• For example, you cannot receive surgery because of the law.

Question 54

Section 8

Answer 54

• The Right to No Unreasonable Search and Seizure means that police must have good reasoning before searching a person, home, or the belongings of the accused.
• They have to give reasonable grounds to search you.
• For example, if the police want to search you for theft, they must have good reasoning for believing you stole.

Question 55

Section 9

Answer 55

• The Right to Not be Arbitrarily Detained or Imprisoned, means that people cannot be held for questioning, arrested, or kept in jail by police without good reason.
• For example, a random person cannot just be kept in jail the police have to agree and have reasons for believing that the accused is a threat to society.

Question 56

Section 10

Answer 56

• Rights While Under Arrest or Detention, meaning that firstly, the arrested have a right to be properly informed of the reason for the arrest. Secondly, the arrested have the right to be informed that they have the right to receive the help of a lawyer. This means that while you’re being arrested, you need to be told why you’re being arrested and reminded that you have the right to a lawyer’s assistance.
• For example, if a man was being arrested for impaired driving, he must be told the reason for his arrest and reminded of his right to a lawyer even though his current state may prohibit him from understanding.

Question 57

Section 11

Answer 57

• Rights When Charged with a Criminal Offence, meaning that 1.firstly, the accused must be told what the crime is,
  2.secondly, the trial must happen within a reasonable time,
  3.thirdly, that the accused cannot be forced to testify at their own trial,
  4.fourthly, the accused are assumed innocent until proven guilty in a fair and unbiased trial,
  5.fiftly, the accused have the right to reasonable bail,
  6.sixthly, the right to trial by jury
  7. and lastly the court can only convict the accused under the law they were charged.
• For example, if someone was originally charged with theft they cannot be convicted of assault in court.

Question 58

Section 12

Answer 58

• Right to No cruel and unusual treatment or punishment, meaning that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
• Ie. A centenary that does not guarantee prisoners the right to not experience cruel and unusual treatment or punishment.

Question 59

Section 15

Answer 59

• Equality Rights, meaning that every individual is equal and governments cannot discriminate in their laws or programs.
• So, everyone is equal before and under the law, every citizen has the right to equal protection and benefit from the law, and the rights are to be applied equally and without discrimination.
• Also, programs set up by governments to improve conditions for certain minority groups are okay even if they are seen as discriminatory to the majority.
• Colour, religion, sex, age - and sexual orientation may not be written down but it is covered under the “spirit of the law” It is a custom
• For example, laws that protect handicapped spots are acceptable because they improve the lives of minorities.

Question 60

Section 33 (Notwithstanding Clause)

Answer 60

• Override sec. 2, 7-15. This means that if the provinces want to pass a law that goes against sec. 7-15, they can.
• For example, even though Quebec’s law that prohibits people who work in the government from wearing religious clothing goes against section 2, it can still be passed. (Bill 21)

Question 61

The Ontario Human Rights Code covers five social areas:

Answer 61

• Employment
• Services, goods and facilities
• Accommodation (housing)
• Contracts
• Membership in vocational associations and trade unions