Week #4 Lecture

Question 1

What do judges look to to make decisions

Answer 1

1. black letter law
2. precedent
3. public opinion and their policy implications

Question 2

why do judges need help making decisions

Answer 2

• they can use the law to shield them from personal attack

- prevents bias, unfair deecision making

Question 3

Explain history of the charter

Answer 3

• The bill of rights existed first, 1960
• it was extremely general and unneffective
   Many provinces passed their own Provincial Human Rights Act – it was much clearer, and
  more effective, however problematic for national unity. Some provinces did not have
  anything at all. These still exist and still apply though
• rights of people are outlined in the Constitution (1982) and the Charter
   Charter is embedded in the Constitution

Question 4

what does the chartr protect you from

Answer 4

-The Charter does not protect you from private actions, or against each other – it can only be
used to challenge actions against the government eg. My parents are sexist and put in their
will that only males children can inherit their money. You cannot use the Charter to defend
yourself. If the government set a law saying that only males can be cited in wills, then you could take the government to Court for discrimination, and then you can be cited in the will if your parents choose

Question 5

what are freedoms

Answer 5

• able to be expressed publically

Question 6

what are mobility rights

Answer 6

you can reside and work any place in the country

Question 7

what are legal rights

Answer 7

fair trial, innocent until guilty

Question 8

what are language rights

Answer 8

speak any language you want

Question 9

in what ways does the charter guarantee equality

Answer 9

-governments must actively protect these rights, and protect against anything that violates these equality rights eg. hate speech

Question 10

what are democratic rights

Answer 10

right to vote and run for office

Question 11

explain section 1 of charter

Answer 11

-rights and freedoms, within reasonable limits, justified in a free and democratic society

Question 12

explain section 7

Answer 12

Life, liberty and security of the person
 The right not be deprived there of
 Except in accordance of fundamental justice

Question 13

explain section 11 of charter

Answer 13

 Guarantees right to fair trial, innocent until proven guilty

Question 14

explain section 15 of charter

Answer 14

All individuals – equal and before the law
 Equal protection, equal benefit of the law
 Without discrimination based on colour, religion, sex, age, mental or physical disability
- Although there is the above list (termed black letter law), there are other grounds of
discrimination that are also included (termed analogous grounds) eg. sexuality

Question 15

explain section 28

Answer 15

• Equality of male and female persons
   It was added due to multicultural concerns - that cultural and religious rights would be used
  to override the rights of women in those groups
   Seems redundant, because of Section 15 – it is rarely invoked by the courts

Question 16

what are the 2 types of equality

Answer 16

formal, substantive

Question 17

explain formal equality

Answer 17

the same treatment will mean that everyone is equal. Tends to be more
abstract.

Question 18

explain substantive equality

Answer 18

• recognises differences, and therefore outcomes should be equal,
  even if that means different treatment.
  -Tends to look at the embedded circumstances that have brought people to the current situation
• Tends to have issues with comparison – to what do you wish to be equal?
• approach endorsed by supreme court in 1989

Question 19

what is a leftist or marxist critique of the charter?

Answer 19

sceptical of liberal justice, fails to address economic inequality.
- The law prevents everyone from stealing bread and sleeping under a bridge, however, that
doesn’t matter if you can afford to buy bread or live in a house. This is formal equality sure,
but not substantive equality
- Views law and rights as tools of oppression
-The Charter is a distraction, it is not available to everyone in society, because it only applies to the courtroom

Question 20

critique of marginalized groups of the charter

Answer 20

• The Charter is a form of cultural imperialism – charter claims are interpreted in the form of
  European derived land, -
  the colonisers culture.
• imposes an alien framework on an indigenous people
• the charter allows you to claim against multiple discrimination but not at the same time

Question 21

charter critique of feminist circles

Answer 21

• the Charter is symmetrical, therefore it can be used to
  reinforce the already powerful circles, and further marginalising those who have been
  oppressed or disadvantaged