Final Exam - Focus Material

Question 1

what is s. 1 of the charter say?

Answer 1

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Question 2

What does section 1 mean and what is its purpose?

Answer 2

Section 1 effects a balance between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed rights and freedoms.

Question 3

How was section 1 defined by the oakes case?

Answer 3

The result was the Oakes test - a test that is used every time a Charter violation is found.

Question 4

what is section 1 of the Charter of Rights and Freedoms typically referred to as?

Answer 4

the limitation clause

Question 5

what is the two part test that is a part of the Charter regarding section 1?

Answer 5

1. the federal or provincial statute’s limits on rights must be reasonable and prescribed by law.
2. the limits must be established to the satisfaction of the presiding judge, to be reasonably justified in a free and democratic society.

Question 6

what was the subject matter of the oakes case?

Answer 6

the oakes case dealt with possession of narcotic for the purpose of drug trafficking. He argued that section 8 of the Narcotic Control Act was unconstitutional.

Question 7

What does section 8 of the Narcotic Control Act require?

Answer 7

Requires a two stage trial on charges of possession for the purpose of trafficking.

Question 8

What are the first two parts of the oakes test?

Answer 8

1. The objective must be of sufficient importance to warrant overriding the constitution.
2. The party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. (The second branch has three criteria that it must be fulfilled to ask; Is there proportionality between the objective and the means used to achieve it?)

Question 9

What are the three questions in the second part of the oakes test?

Answer 9

1.”Rational Connection”: the limit must be rationally connected to the objective. There must be a causal link between the impugned measure and the pressing and substantial objective
2.”Minimal Impairment”: the limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective. The government will be required to show that there are no less rights-impairing means of achieving the objective “in a real and substantial manner”
3.”Final Balancing”: there must be proportionality between the deleterious and salutary effects of the law.

Question 10

What do each of the parts of the oakes test mean?

Answer 10

1. Rational connection… there needs to be a carefully designed measures that are utilised to achieve the objective. This means they cannot be arbitrary, unfair or based on irrational considerations.
2. Minimal Impairment… no more impairment then is absolutely necessary.
3. Final balancing… there must be proportionality between the effects of the measures and the objective which has been identified as of sufficient importance.

Question 11

What is the two part trial of section 8 of the Narcotics Control Act entail?

Answer 11

1. The prosecutor has to establish possession.
2. Once convicted of possession, the accused had then to convince the judge or jury that he or she was not likely to be in possession of the narcotic for the purpose of trafficking.

Question 12

What was the argument against section 8 of the Narcotics Control Act in R v. Oakes?

Answer 12

that it undermined the presumption of innocence in criminal cases and as a result, the right to a fair trial

Question 13

Which section of the charter did section 8 of the Narcotics Control Act breach?

Answer 13

The right to a fair trial guaranteed in section 11(d).

Question 14

Did section 8 of the Narcotics Control Act pass the test? if not why did it fail the test?

Answer 14

It was found that the objective of prohibiting narcotics was “sufficiently important” section 8 ultimately failed the test of probability.

Question 15

When a law is found to breach the Charter… what happens?

Answer 15

There are some possibilities depending on the breach in question, these include; declaration, injunction, striking down, severance, reading down and reading in and finally damages.

Question 16

Under what section of the Constitution Act of 1982 does it include the striking down of laws?

Answer 16

Section 52 (1)

Question 17

What does section 52 (1) state?

Answer 17

The constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Question 18

what is a reverse onus?

Answer 18

a provision within a statute that shifts the burden of proof onto the individual.

Question 19

Why did oakes fail the test?

Answer 19

The possession of a small or negligible quantity of narcotics does not support the inference of trafficking… it would be irrational to infer that a person who had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics.

Question 20

Are Charter rights absolute? If not when can they be infringed?

Answer 20

No they are not, they can be infringed if the Courts determine that the infringement is reasonably justified.

Question 21

What is section 24?

Answer 21

Enforcement- it states that a court may award “such remedy as it considers appropriate and just in the circumstances.” This comes into play when there has been a breach of the Constitution.

Question 22

why would a judge impose an injunction for a charter breach?

Answer 22

as opposed to a declaration it would give the judge more choice. It would require the government to address the problem in a certain way.

Question 23

What is striking down?

Answer 23

Eliminates a statute that violates the Charter.

Question 24

When does striking down take effect?

Answer 24

It can be effective immediately or it may be temporarily suspended.

Question 25

What is severance, reading down and reading in?

Answer 25

A court may save a statute by re-writing part of it or it may be severed out (severance)

Question 26

Why would severance, reading down and reading in be used?

Answer 26

If only one part of a statute is offensive

Question 27

What is read down? and when is it used?

Answer 27

if a statue is written too broadly, it may be read dow so that it applies only where it can be justified.

Question 28

What is read in? When does it apply?

Answer 28

If a statute is written too narrowly the court, the court my read in a broader interpretation, so that certain people are not excluded from its benefits.

Question 29

Which province did not sign on to the 1982 constitution?

Answer 29

Quebec

Question 30

What did Quebec do 1981? (2 things)

Answer 30

1. the Quebec National Assembly passed a resolution rejecting the constitutional agreement reached by the federal government an other provinces a month earlier. 2. Argued before the Supreme court of Canada that the proposed constitutional amendments would not become law without Quebec's consent.

Question 31

What was the decision when Quebec argued before the Supreme Court of Canada?

Answer 31

the Supreme Court dismissed Quebec's arguments noting that it was not legally required however, they did add that constitutional custom and convention required passage unilaterally.

Question 32

Why did Quebec refuse to sign the Constitution Act 1982?

Answer 32

They would lose their veto power over future constitutional changes (due to the new amending formula), the Charter of Rights which guaranteed minority language rights "where numbers warrant." This would have meant the end of Quebec's Bill 101 by protecting English language rights in Quebec (while at the same time protecting French language rights in the rest of Canada).

Question 33

Briefly summarize the Meech Lake Accord.

Answer 33

Essentially initiated by Quebec, Bourassa stated the conditions that would be necessary for Quebec to accept the Constitution. The Meech Lake Accord met these provisions.

Question 34

what year was the Meech Lake Accord?

Answer 34

1987

Question 35

Who was the Prime Minister at the time of the Meech Lake Accord?

Answer 35

Mulroney

Question 36

Who was in charge of Quebec at the time of the Meech Lake Accord? Why did this matter?

Answer 36

Robert Bourassa, he was elected in 1985 and was interested in reconciliation with the rest of Canada.

Question 37

What were the conditions that Bourassa stated would be necessary for Quebec to accept the Constitution?

Answer 37

Designating Quebec as a distinct society, permitting some changes in respect to veto of the constitutional amendments, Supreme Court Appointments and control over immigration.

Question 38

What were the criticisms of the "distinct society" clause?

Answer 38

Quebec was seen by some as no more deserving of distinct society status then other provinces; indigenous-canadian, women and people with disabilities (which also had largely been excluded from the meetings).

Question 39

Which provinces held out of the ratification of Meech Lake?

Answer 39

Newfoundland, New Brunswick and Manitoba.

Question 40

When did the Charlottetown Accord take place?

Answer 40

1992

Question 41

What did the Charlottetown Accord lay out to change?

Answer 41

Quebec's representation within the country's constitution but also proposed changes to the senate, the composition of the House of Commons, Indigenous Rights and the amending formula.

Question 42

What are the differences between the Meech Lake Accord "Distinct Society Clause" and the "Canada Clause"?

Answer 42

The Canada Clause also recognized many other groups including indigenous people, females etc. Tho they are not stated as a "distinct societies", the "The Distinct Society Clause" is solely focused on the demands of Quebec in order to get them to sign the Constitution Act.

Question 43

What is "The Distinct Society Clause"?

Answer 43

From the Meech Lake Accord. 1. (b) states that Quebec is recognized as a a distinct society within Canada.

Question 44

What else was promised to Quebec in the Meech Lake Accord?

Answer 44

That Parliament and the provincial statutes are committed to preserving the fundamental characteristics outlined in the Distinct Society Clause, immigration.

Question 45

Why did the Meech Lake Accord fail?

Answer 45

between the negotiation period and ratification three provinces declined, there had been a number of criticism of the accord.

Question 46

Why did the Charlottetown Accord fail?

Answer 46

It was decided by national referendum, and lost by a margin of 55 to 45 percent. Failed b/c it tried to accomplish too much too fast. Mulroney and his conservative government were also unpopular at the time.

Question 47

what is POGG?

Answer 47

peace order and good government

Question 48

How does s. 33 of the Constitution work?

Answer 48

says that the government can pass laws not withstanding that they violate the Charter if they about s. 2, 7-14 & 15 of the Charter. These laws can only stay for 5 years and then have to be passed again.

Question 49

which section of the constitution restores some of the doctrine of parliamentary sovereignty?

Answer 49

Section 33 Notwithstanding Clause

Question 50

What is the Tree Doctrine of 1929?

Answer 50

The “living tree” doctrine refers to a method of constitutional interpretation that allows for Canada’s Constitution to change and evolve over time while still acknowledging its original intention.

Question 51

What two things does the Doctrine of Living Tree balance?

Answer 51

predictability the Constitution must consist of a predictable set of rules. That way, Canadians know how their activities are governed, and Canada and the provinces can be governed in a consistent manner. flexibility interpretation accommodates the realities of changing modern life. If the Constitution could not be interpreted this way, it would be frozen in time and become more obsolete than useful

Question 52

What case is also known as the Persons Case?

Answer 52

Edwards v. Canada (1929)

Question 53

What was the JCPC?

Answer 53

Canada's Highest Court the Judicial Committee of the Privy Council. Higher than the Supreme Court of Canada at the time.

Question 54

What was the question in Edwards v. Canada?

Answer 54

It was analyzing the Constitutions use of the term "persons" as it had always referred to men. In the recognition of women as persons in the constitution the court ruled that women could be appointed for the Senate.

Question 55

who stated the tree line?

Answer 55

Justice Sankey

Question 56

What did Justice Sankey say about the Living Tree?

Answer 56

while constitutional stability and integrity is of the utmost importance, the Constitution “also planted in Canada a living tree capable of growth and expansion within its natural limits

Question 57

How did the The Living Tree Doctrine apply to the Persons case?

Answer 57

Women may not have been able to vote or hold office in 1867, but times had changed and so had constitutional interpretation. The decision helped women gain a measure of equality to men in the political arena.

Question 58

What is constitutional patriation?

Answer 58

the political process that led to full Canadian sovereignty.

Question 59

What did the 8 provinces not agree with? "The Gang of Eight"

Answer 59

The amending formula, the shift of power from parliamentary supremacy to judicial review.

Question 60

What does section 32 of the Charter regard?

Answer 60

Application of the Charter

Question 61

What is stated in section 32 of the Charter?

Answer 61

(1) The Charter Applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; (b) to the legislature and government of each province in respect of all matters with the authority of the legislature of each province. | The Charter applies to the government not individual actors

Question 62

What does section 24 of the Charter of Rights and Freedoms state?

Answer 62

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Exclusion of evidence Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Question 63

What is section 2 of the Charter?

Answer 63

Fundamental Freedoms

Question 64

What is stated in section 2?

Answer 64

2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression. (c) freedom of peaceful assembly; and (d) freedom of association

Question 65

What is section 3 and 5 of the Charter?

Answer 65

Democratic Rights

Question 66

What does section 3 of the Charter state?

Answer 66

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Question 67

What is stated in section 5 of the Charter?

Answer 67

There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Question 68

What is section 6?

Answer 68

Mobility rights

Question 69

What is included in section 6?

Answer 69

6.(1) Every citizen of Canada has the right to enter, remain in and leave Canada. (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Question 70

What is section 7-14 of the Charter?

Answer 70

Legal Rights

Question 71

What is a summary of section 7 - 14?

Answer 71

Life, liberty and security of person, search and seizure, detention or imprisonment, arrest or detention, proceedings in criminal and penal matters, treatment or punishment, self-incrimination, interpreter.

Question 72

what is included in section 11 of the Charter?

Answer 72

Any persons charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Question 73

What is section 15?

Answer 73

Equality rights

Question 74

what is stated in section 15?

Answer 74

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Question 75

What is covered in section 38-41?

Answer 75

Amending Constitution of Canada.

Question 76

Why did Canada have so much trouble achieving constitutional patriation?

Answer 76

The federal and provincial governments disagreed on issues, the Gang of 8.

Question 77

What were the main issues on the road to patriation?

Answer 77

The amending formula, native rights and various Charter Rights. They feared that they would lose parliamentary supremacy to judicial review do to the charter.

Question 78

What legal route did the Gang of 8 take to stop the PM?

Answer 78

Supreme Court of Canada and Manitoba, Quebec and Newfoundland took questions to the court of Appeal.

Question 79

What did the Gang of 8 suggest?

Answer 79

section 33 the Notwithstanding clause

Question 80

Why did Newfoundland, Manitoba and Quebec go to the Court of Appeal?

Answer 80

They were chosen as their origins in Canada are all different, Manitoba was created after the constitution, Quebec was a founding province, Newfoundland came in by statute passed in UK.

Question 81

What did the Supreme Court hold in regards to Quebec Secession?

Answer 81

The Court unanimously held that Quebec could not unilaterally separate (i.e. without negotiation or consultation with the federal government and provinces) from Canada because it would violate both the Canadian Constitution and international law.

Question 82

what is section 38-41 of the constitution?

Answer 82

Amending Formula

Question 83

What are questions that could be asked simply for the second part of the oakes test?

Answer 83

1. is it rationally connected, not arbitrary or unfair? 2. Does it limit you rights as little as possible? 3. Are the ends and mean in proportion?

Question 84

What is section 38 of the Charter?

Answer 84

To change the Constitution using the general formula, the change needs to be approved by 1) the House of Commons, 2) the Senate, and 3) a minimum number of provincial legislatures. There must be at least seven provinces that approve the change, representing at least 50% of the population of all the provinces combined. This is often called the 7/50 rule.

Question 85

what are the three branches of pogg?

Answer 85

Emergency: “the temporary and extraordinary need for national regulation of a particular subject matter”; Residual/Gap: “the power to make laws on matters that are not enumerated” in the Constitution; and National Concern: “the power to make laws in relation to matters that go beyond local or provincial concerns or interests, and are, due to their inherent nature, concerns of the Dominion of Canada as a whole.

Question 86

Where is pogg found? And what does it say?

Answer 86

preamble to s. 91 and s. 92 of the BNA It shall be lawful for the Queen … to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”[

Question 87

What are the two requirements for pogg in emergency circumstances?

Answer 87

1. There must be a rational basis for the legislation; and 2. The legislation must be of a temporary nature.