Law Unit 2 Test Flashcards
Explain how constitutional law developed in Canada.
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
What is the BNA Act?
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
Give some examples (3 for each) of the division of power between the Federal and Provincial Governments.
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
What level of government passes bylaws?
Municipal government
Parking, parking at certain times
Dog licenses
What is the highest court in Canada?
The Supreme Court of Canada
Only hears appeals - can’t start a case here
Why was the Statute of Westminster important?
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
What Prime Minister brought in the “The Charter of Rights and Freedoms”?
Pierre Elliot Trudeau
Give 2 limitations of the Bill of Rights.
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
What does Section 2 of the Charter of Rights and Freedoms give us?
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)
Why is section 15 of the CRF so important?
Equality Rights - allow us to not be discriminated against for many things
Ie. Age, gender, religion, sex, sexual orientation, etc
Why was section 33 the “Notwithstanding Clause” put into the Charter?
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)
What year was the Charter put into the Constitution?
1982
How has the Supreme Court expanded its power since 1982?
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
Why is discrimination different from stereotyping?
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
What are mobility rights?
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
What has the international community done about the Human Rights abuses faced by the Rohingya and the Uyghurs?
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
What was the Indian Act?
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
Why did First Nations leaders oppose the “White Papers?
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
Under which level of government will you find First Nations issues being dealt with?
The Federal government
What is judicial activism and why is it a controversial issue in Canada?
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
Give an example of human rights theories from the Theorists we studied in class.
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
Land Claims:
Formal demands made by Aboriginal peoples for ownership and control of lands on which they live or have traditionally lived
Entrenchment:
To protect and guarantee a right or freedom by ensuring that it can only be changed by an amendment to the Constitution.
Cultural Genocide (Indigenous groups):
Genocide is killing people, in cultural genocide you are going after the culture specifically (ie. Indian Act).
Strike Down:
If the Court feels that a law violates the Charter it has two options: Strike Down – the law is no longer valid or Read Down – the law may generally be acceptable but not in this case it must be changed to comply with the Charter. Allows the government to strike down a law that is no longer valid.
Collective Rights:
rights acquired as a result of membership in a group; all members of the group share the same rights.
TRC:
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.
Social Contract:
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.
Discrimination:
The actual action of making a distinction between people and treating them differently on a basis other than individual merit.
Freedom:
The right to conduct one’s affairs without governmental interference.
Right:
A legal, moral, or social entitlement that citizens can expect, mainly from the government.
Moral Law:
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.
Prejudice:
A preconceived opinion based on a stereotype or inadequate information.
Stereotype:
An oversimplified, standardized, or fixed judgment of a group of people.
Marxism:
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.
Notwithstanding Clause:
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.
The White Papers.
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.
Reasonable Limits:
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.
Indian Act:
a number of colonial laws whose purpose was to terminate First Nation culture and further push euro-Canadian society.
Amending Formula:
a method for making changes to a constitution in Canada’s case, a method that would no longer involve the British parliament
Federalism:
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.
Secondary Sources of Law:
Constitutional Law
- Statute Law
– Common Law
Constitutional Law
is a branch of…
what does it do?
A branch of “Public Law” (see diagram, p43
Sets out the structure of government
Establishes basic laws and principles that all other laws must follow
Makes sure the judicial branch does not conflict
Laws that are found to be “unconstitutional” can be struck down by judicial branch (courts)
What is a constitution?
- supreme law of land
- usually a written document or a collection of practices
What is the name of Canada’s Constitution?
The Constitution Act
When did Canada get its own (constitution)?
1982
Why should a country have a constitution?
- Legal stability
- Support from both citizens and government rests in it
- Reflect “Rule of law”
- Allow courts to protect people from temporary tyranny in government
Canada’s Constitutional History
- British North America Act, 1867
- Statute of Westminster, 1931
- Constitution Act, 1982
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 the agreement of 7 provinces equally at least 50% of the population
Distribution of Legislative Powers
- Federal Gov. Powers (Section 91 of Constitution)
- Provincial Government Powers (Section 92)
Federal Gov. Powers (Section 91 of Constitution)
Peace, order and good government
Criminal law
Unemployment insurance
Banking
Federal penitentiaries
Marriage and divorce
Postal service
Provincial Government Powers (Section 92)
Property and civil rights
Education
Police forces and provincial courts
Highways and roads
Provincial jails
Hospitals
PRINCIPLE OF EQUALIZATION:
Federal money should be transferred to provinces in order to ensure equal services
Intra Vires vs. Ultra Vires
Intra Vires
- “within the power”
- Something within a government’s jurisdiction
Ultra Vires
- “beyond the power”
- Something outside a government’s jurisdiction
- i.e. provinces cannot pass laws changing the treatment of young offenders; this is a criminal matter and is under the power of the federal government.
Changing our Constitution
- Must reflect the beliefs and values of a state (country); therefore must be open to change (amendment)
- Before 1982, Canadians had no ability to change their constitution, which was controlled by Britain
- Judicial amendments: courts can interpret and define the construction
- Amending Formula (for big issues, requires Federal Gov. and all 10 provinces to agree)
What do you think that Voltaire meant by this following quote: “I disapprove of what you say, but I will defend to the death your right to say it”
I think Voltaire is essentially saying “I might not agree with what you’re saying, but I will support your right to say it, even if it means risking my life because your right to free speech (under reasonable limits) is crucial to a free and democratic society. Otherwise, we risk a society governed under a totalitarianist regime.”
Statute of Westminster, 1931
- In the decades after WW1, Imperial Conferences were held every 4 years
- The leaders of the member countries of the British Empire met at these conferences to discuss issues of common concern
In 1926, a report by a committee at the Imperial Conference declared that Canada and the other dominions would no longer be controlled and under Britain law. - The Statute of Westminster passed in 1931 was the logical extension of the 1926 report
- Under the Statute, Britain could no longer legislate for a dominion unless it was specifically asked to by the dominion
- This meant that Canada was no longer subject to British laws and could pass laws that contradicted those of Britain
- Canada was now independent of Britain in terms of foreign policy.
Patriation and Constitution
- Although Canada has become independent in foreign policy, our constitution remained a British statute
- An important reason for this impasse was that no agreement could be made on patriating the constitution with a Canadian amending formula.
- PM Pierre Trudeau (first elected in 1968) was determined to reform the Canadian constitution
- In 1971, the first ministers produced a draft called the Victoria Charter, a written guarantee of rights accepted by the provinces and the fed government
- Trudeau fought against the Parti Quebecois referendum on sovereignty-association in May 1980
- Trudeau promised a renewed federalism, constitutional renewal and patriating of the constitution from Britain
- With the amending formula, one of the most controversial issues because of the entrenchment of a bill of rights in the constitution
- In Nov 1981, the federal government and nine of the 10 provinces agreed to the patriation of the constitution with an entrenched charter of rights and freedoms
- The province of Quebec felt excluded from key discussions ignored in some of its concerns and refused to sign the agreement
Patriating:
transfer control over a constitution from a mother country to its former dependency.
Amending Formula:
a method for making changes to a constitution in Canada’s case, a method that would no longer involve the British parliament
The Evolution of Canada Worksheet
- Statute of Westminster, 1931
- Patriation and Constitution
- The Meech Lake Accord
- The Charlottetown Accord
- The 1995 Quebec Referendum
The Meech Lake Accord
- The failure to persuade the province of Quebec to agree to the patriation of the constitution in 1981 created arguing that the constitutional deal was flawed
- The government of Quebec put forth a series of proposals that would have led to Quebec’s signing of the constitution
- In 1987, at Meech Lake in Ottawa, PM Mulroney got all 10 provincial premiers to agree to a constitutional package based on these proposals
- The new deal, the Meech Lake Accord would recognize Quebec as a “distinct society” and would give the provinces more power relative to the federal government
- Changes included giving the provinces the right to supply nominees for the Senate and Supreme Court
- All provinces agreed to the agreement to enhance their constitutional power
The Meech Lake Accord Problems
- PM Pierre Elliot Trudeau saw the special recognition of Quebec as a “distinct society” as unnecessary and dangerous
- First Nations leaders were upset at the lack of consultation with them over proposed changes and the accord did not address First Nation concerns
- It was not ratified within the necessary time frame.
Referendum:
direct vote by the electorate on a law
Power of disallowance:
a power granted to the federal government that gave it the right to disallow provincial legislation
The Charlottetown Accord
- The Mulroney government did not give up on constitutional renewal, despite the failure of the Meech Lake Accord.
- In 1992, a new proposal, called the Charlottetown Accord was put before the people of Canada in a national referendum
- Similar to the Meech Lake Accord, the Charlottetown Accord dealt with constitutional issues such as division of powers in forestry, mining and cultural affairs
- Charlottetown Accord enhanced provincial power so for example, the federal power of disallowance was abolished.
- First Nations concerns were addressed and the new accord would also make changes to the Supreme Court by formally entrenching the composition and appointment process
- Senate would be changed from appointed to elected body having equal representation from each of the provinces
- Charlottetown Accord was defeated in six provinces and one territory
The 1995 Quebec Referendum
- Failure to reach a deal that would have allowed Quebec to sign the constitution led to another referendum in Quebec
- As with the earlier referendum, Quebeckers would decide whether they wished to remain a part of Canada
- Unlike the referendum of 1980, however, the 1995 vote would have resulted in an immediate declaration of sovereignty
- The outcome of the 1995 referendum was also dramatically different from the results in 1980
- This time, the “no” forces won by a razor-thin majority (50.56% of the popular vote)
- At the beginning of the 21st century, Canada remained intact, but Quebec still had not signed the constitution
The Concept of Human Rights & The Canadian Charter of Rights & Freedoms
- There has always been tension in human groups between the need for individuality and conformity.
- Out of this struggle has come a recognition of human rights:
- Personal liberty
- Fair distribution of what society has to offer ⇒ food, shelter, jobs, education or wealth
Different political and economic systems view these rights differently
(Communism vs. Capitalism)
Communism
- Use of Law to ensure a fair distribution of social and economic wealth
Capitalism
- Minimal state intervention and maximum freedom of the marketplace.
These views of human rights can be transferred to our philosophers.
(Positive Rights vs. Natural Rights)
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
