The Rule of Law
The Rule of Law and the Canadian Constitution 1) Rule of Law: various definitions a)
Plato: Law is the master of government and government is law’s slave
b)
Formal (thin) rule of law
c)
Substantive (thick) rule of law
d)
Functional definition of the rule of law
e)
UN definition
2) Canadian Constitutionalism – Re: Quebec Secession: a)
Constitution defined: a comprehensive set of rules and principles capable of providing an exhaustive legal framework for our system of government and including both written documents and unwritten principles of law
b)
Written components
c)
Unwritten components
3) Four fundamental principles of Canadian constitutionalism a)
Federalism i) Division of powers between the federal and provincial governments ii) Federal powers in s. 91 of the Constitution Act 1867 iii) Provincial powers in s. 92 of the Constitution Act 1867
b)
Democracy i) Procedural aspect ii) Social ideal aspect
c)
Constitutionalism and the rule of law i) Roncarelli v. Duplessis
d)
Protection of minority rights
4) Constitution Act, 1867 and Constitution Act, 1982 a)
1867 Key aspects: i) Creation of federal and provincial governing bodies ii) S. 91 and 92: distribution of legislative powers
b)
1982 Key Aspects - Canadian Charter of Rights and Freedoms: i) S. 1: rights are not absolute but are subject to reasonable limits prescribed by law and which are demonstrably justified in a free and democratic society ii) S. 2: fundamental freedoms of conscience and religion, thought and expression, peaceful assembly, and association
iii) S. 3-5: democratic rights iv) S. 7: right to life, liberty, and security of the person v) S. 15: equality rights – right o be equal before and under the law and the right to equal protection and benefit of the law without discrimination based on the enumerated and analogous grounds vi) S. 32: Charter applies to federal and provincial governing bodies vii) S. 33:notwhitstanding clause c)
Key concept: the balance of power as between the federal and provincial governing bodies as a reflection of the underlying ideas about federalism
d)
Key concept: constitutional democracy - the ability and authority of the courts to overrule actions of the government as a means of upholding the constitution and protecting minority rights even where that undermines the principles of democracy, majority rule, and political accountability
5) Constitutionalism – Key concepts a)
Balancing majority rules and democracy with protection of minority right i) House of commons and senate ii) Division of powers iii) Charter provisions
b)
Legal Liberalism and individual as basic political unit (Charter)
c)
Recognition of the rule of law as the basis of the Canadian political and legal system
d)
Constitutional democracy: Key issue – who is the ultimate authority parliament or the judiciary?
Recap • rule of law - law is the master of government • thin and thick paradime way of looking at the law • constitution definition *** KNOW THIS
1 - british/ north amarica act 1867 (ENA ACT/CONSTITUTION ACT) 2 - Cons. act - 1982 which includes the Canadian Charter of R and F Constitution 1867 • sets out structure for provincial gov. • constitute the leg. authority and setting out it's legislative authority • 1rst thing it did - create 4 provinces of Canada (quebec, ontario, nova scotia and new brunswic) • alberta joined in 1905
• 2 - sets out our form of gov. ( re - enforces that we are a conditional monarchy; ultimate authority is vested in the Queen) • 3 - one parliament of Canada composed of : Queen, senate and house of commons • representation by population ( house of commons) and rep. by region • house of commons - ontario and quebec hold the power • rep. by population supposed to be balanced by the senate ( rep. by region) but 50% is ontario and quebec and 24% for alberta, saskatwan and BC • senate - appointed by the queen • 4 - sets up legislative powers of provinces ( gov. and leg. body and 4-5 year terms) • division of powers - an attempt to marry unity and diversity (sec 91 and 92) • federal gov making laws and sections where provinces make laws - 91 and 92 respectably • 92 - property rights, education, language - provincial jurisdiction ( those separate matters are unique to the province) • 5 - set up our judicial system - different levels of courts within the provinces and who gets to appoint judges • provinces appoint lower court judges - PCof Alberta • 6 - sets up paramountcy - system of deciding whose laws take precedence (provincial OR federal) if they come into conflict Constitution 1982
• 7 parts • part one - Canadian Charter of Right and Freedoms (not a separate document) • 2 - rights of the aboriginal people of Canada • 3 - equalization and regional disparities (all the money from oil and gas gets distributed to all the provinces, rich countries help the poor ones) • 4 - constitutional conferences • 5 - amending procedure (what do you need to change the constitution) • 6 - ammendments to 1867 constitution • 7 - general stuff ( lists the written portions of the constitution) Charter Section One - rights guaranteed to all Canadians but are limited and not absolute - slide definition • limits - reasonable limits in the circumstances • limits - prescribed by law • hate crimes but freedom of expiression - maybe amanda todd case here ( LIMIT set out by LAW, limit freedom of expression when it's a hate crime) • reasonable limits - r versus oakes (1986 supreme court of canada) two part test for determining when a limit is to be justified: 1 - objectivity test (importance of the objective of the limiting measure; must be of sufficient importance; objective must be pressing or substantive oboective of a limiting measure, you need to have a very good reason to override a right) ; 2 - reasonable list aspect (proportionalty test) - means must meet the ends
• 3 sub points to proportionality test • 1 - measures adopted must be designed to achieve your pressing/ substantive objective ( hate crime leg. is there to prevent lalal); must be designed to meet objective • 2 - law you're putting in place must impair the freedom question as little as possible (has to be minimal impairment; can't just say stop writing newspapers ) • 3 - must be proportionality b/w objective and effects • principles: inherit dignity of the human being (ultimate want of the charter) ; ALSO commitment to social justice/ equality which accommodates a wide variety of beliefs and respects cultural and group identity rights we have: Section Two - slide • conscience includes con. beliefs that are not based on religious beliefs • religion - right to entertain own religious beliefs but the charter protects the right to express your beliefs w/o fear that you will be persecuted; right to manifest through worship and teaching ( belief and practice your belief and speak of it openly) • expression - we need this for a functional democracy (let the gov, know what they are doing wrong) - people nowadays aren't allowed to express themselves w/o fear and it's ruining our democracy • expression - an activity that conveys or attempt to convey meaning • not acts of violence/ threats of violence • limiting freedom of expression: 1 - limiting the content you say or 2 - limiting the form of expression (picketing law) • included b/c they are central to who we are and need to be protected by government 3 - 5 - democratic rights 7 - right to life, liberty and security of the person (applies to everyone) • includes non canadian citizens • not a positive right - sec seven • negative and positive right • positive right - someone has a duty to give you that • negative right - nobody has a duty to give you religion but you have the right to go out there and provide it for yourself • right to assisted suicide - not a positive right • 1993 challenged and the court said no you have no right to assist suicide - BC WOMAN earlier this year allowed to receive suicide (appealed and under appeal) • freedom to act w/o physical constraint - liberty • person - right to privacy of our body and health including our mental health • open q: economic rights? Section 9 - sets out legal rights in a criminal justice system
• right to not be arbitrarily arrested • must have reasonable grounds for suspecting a crime • if on detention; you have the right to know what you're being charged with • right to seek legal council • right to a trial within a reasonable time - young woman assaulted in alberta and the case got thrown out b/c it took too long and that is a violation to this law and they said there isn't enough prosecutors, judges, time during the day, lawyers (airdrie sexually assaulted for 8 years and thrown out of court) • charter - greatest impact - criminal rights and aboriginal rights section 15 - slide • remedying historic disadvantage to those groups who have historically been a subject to discrimination • preventing violations of human dignity that occur b/c of stereotyping and prejudice • equality of all persons • idea that law should see all of us as equally deserving of care • back to Natural Law Theory - we have a core of dignity • we have this religion, human essence that must be protected by the law • not just formal equality , but substantive also • what is equality? we know what inequality is (distinctions - group A is treated differently than group B and distinctions are OK the court says - legal classifications need to be in society but destinations that are discriminatory are NOT okay) • discrimination - distinction based on grounds relating to the personal characteristics of the individual or group concerned that has the effect of imposing disadvantages or burdens not imposed on others or of withholding access to advantages or benefits available to others • lists the grounds of discrimination - enumerated grounds (most common grounds - religion, ethnicity, age, gender, disability) • can also be based on analogous grounds (similar things) - sexuality, - look if that group has been prejudiced previously • in order to establish sec, 15 being violated - 1 - a distinction and THEN the distinction has to be based on either analogous or en. ground and 3 - the distinction has to be discriminatory!
Plato: Law is the master of government and government is law’s slave
b)
Formal (thin) rule of law
c)
Substantive (thick) rule of law
d)
Functional definition of the rule of law
e)
UN definition
2) Canadian Constitutionalism – Re: Quebec Secession: a)
Constitution defined: a comprehensive set of rules and principles capable of providing an exhaustive legal framework for our system of government and including both written documents and unwritten principles of law
b)
Written components
c)
Unwritten components
3) Four fundamental principles of Canadian constitutionalism a)
Federalism i) Division of powers between the federal and provincial governments ii) Federal powers in s. 91 of the Constitution Act 1867 iii) Provincial powers in s. 92 of the Constitution Act 1867
b)
Democracy i) Procedural aspect ii) Social ideal aspect
c)
Constitutionalism and the rule of law i) Roncarelli v. Duplessis
d)
Protection of minority rights
4) Constitution Act, 1867 and Constitution Act, 1982 a)
1867 Key aspects: i) Creation of federal and provincial governing bodies ii) S. 91 and 92: distribution of legislative powers
b)
1982 Key Aspects - Canadian Charter of Rights and Freedoms: i) S. 1: rights are not absolute but are subject to reasonable limits prescribed by law and which are demonstrably justified in a free and democratic society ii) S. 2: fundamental freedoms of conscience and religion, thought and expression, peaceful assembly, and association
iii) S. 3-5: democratic rights iv) S. 7: right to life, liberty, and security of the person v) S. 15: equality rights – right o be equal before and under the law and the right to equal protection and benefit of the law without discrimination based on the enumerated and analogous grounds vi) S. 32: Charter applies to federal and provincial governing bodies vii) S. 33:notwhitstanding clause c)
Key concept: the balance of power as between the federal and provincial governing bodies as a reflection of the underlying ideas about federalism
d)
Key concept: constitutional democracy - the ability and authority of the courts to overrule actions of the government as a means of upholding the constitution and protecting minority rights even where that undermines the principles of democracy, majority rule, and political accountability
5) Constitutionalism – Key concepts a)
Balancing majority rules and democracy with protection of minority right i) House of commons and senate ii) Division of powers iii) Charter provisions
b)
Legal Liberalism and individual as basic political unit (Charter)
c)
Recognition of the rule of law as the basis of the Canadian political and legal system
d)
Constitutional democracy: Key issue – who is the ultimate authority parliament or the judiciary?
Recap • rule of law - law is the master of government • thin and thick paradime way of looking at the law • constitution definition *** KNOW THIS
1 - british/ north amarica act 1867 (ENA ACT/CONSTITUTION ACT) 2 - Cons. act - 1982 which includes the Canadian Charter of R and F Constitution 1867 • sets out structure for provincial gov. • constitute the leg. authority and setting out it's legislative authority • 1rst thing it did - create 4 provinces of Canada (quebec, ontario, nova scotia and new brunswic) • alberta joined in 1905
• 2 - sets out our form of gov. ( re - enforces that we are a conditional monarchy; ultimate authority is vested in the Queen) • 3 - one parliament of Canada composed of : Queen, senate and house of commons • representation by population ( house of commons) and rep. by region • house of commons - ontario and quebec hold the power • rep. by population supposed to be balanced by the senate ( rep. by region) but 50% is ontario and quebec and 24% for alberta, saskatwan and BC • senate - appointed by the queen • 4 - sets up legislative powers of provinces ( gov. and leg. body and 4-5 year terms) • division of powers - an attempt to marry unity and diversity (sec 91 and 92) • federal gov making laws and sections where provinces make laws - 91 and 92 respectably • 92 - property rights, education, language - provincial jurisdiction ( those separate matters are unique to the province) • 5 - set up our judicial system - different levels of courts within the provinces and who gets to appoint judges • provinces appoint lower court judges - PCof Alberta • 6 - sets up paramountcy - system of deciding whose laws take precedence (provincial OR federal) if they come into conflict Constitution 1982
• 7 parts • part one - Canadian Charter of Right and Freedoms (not a separate document) • 2 - rights of the aboriginal people of Canada • 3 - equalization and regional disparities (all the money from oil and gas gets distributed to all the provinces, rich countries help the poor ones) • 4 - constitutional conferences • 5 - amending procedure (what do you need to change the constitution) • 6 - ammendments to 1867 constitution • 7 - general stuff ( lists the written portions of the constitution) Charter Section One - rights guaranteed to all Canadians but are limited and not absolute - slide definition • limits - reasonable limits in the circumstances • limits - prescribed by law • hate crimes but freedom of expiression - maybe amanda todd case here ( LIMIT set out by LAW, limit freedom of expression when it's a hate crime) • reasonable limits - r versus oakes (1986 supreme court of canada) two part test for determining when a limit is to be justified: 1 - objectivity test (importance of the objective of the limiting measure; must be of sufficient importance; objective must be pressing or substantive oboective of a limiting measure, you need to have a very good reason to override a right) ; 2 - reasonable list aspect (proportionalty test) - means must meet the ends
• 3 sub points to proportionality test • 1 - measures adopted must be designed to achieve your pressing/ substantive objective ( hate crime leg. is there to prevent lalal); must be designed to meet objective • 2 - law you're putting in place must impair the freedom question as little as possible (has to be minimal impairment; can't just say stop writing newspapers ) • 3 - must be proportionality b/w objective and effects • principles: inherit dignity of the human being (ultimate want of the charter) ; ALSO commitment to social justice/ equality which accommodates a wide variety of beliefs and respects cultural and group identity rights we have: Section Two - slide • conscience includes con. beliefs that are not based on religious beliefs • religion - right to entertain own religious beliefs but the charter protects the right to express your beliefs w/o fear that you will be persecuted; right to manifest through worship and teaching ( belief and practice your belief and speak of it openly) • expression - we need this for a functional democracy (let the gov, know what they are doing wrong) - people nowadays aren't allowed to express themselves w/o fear and it's ruining our democracy • expression - an activity that conveys or attempt to convey meaning • not acts of violence/ threats of violence • limiting freedom of expression: 1 - limiting the content you say or 2 - limiting the form of expression (picketing law) • included b/c they are central to who we are and need to be protected by government 3 - 5 - democratic rights 7 - right to life, liberty and security of the person (applies to everyone) • includes non canadian citizens • not a positive right - sec seven • negative and positive right • positive right - someone has a duty to give you that • negative right - nobody has a duty to give you religion but you have the right to go out there and provide it for yourself • right to assisted suicide - not a positive right • 1993 challenged and the court said no you have no right to assist suicide - BC WOMAN earlier this year allowed to receive suicide (appealed and under appeal) • freedom to act w/o physical constraint - liberty • person - right to privacy of our body and health including our mental health • open q: economic rights? Section 9 - sets out legal rights in a criminal justice system
• right to not be arbitrarily arrested • must have reasonable grounds for suspecting a crime • if on detention; you have the right to know what you're being charged with • right to seek legal council • right to a trial within a reasonable time - young woman assaulted in alberta and the case got thrown out b/c it took too long and that is a violation to this law and they said there isn't enough prosecutors, judges, time during the day, lawyers (airdrie sexually assaulted for 8 years and thrown out of court) • charter - greatest impact - criminal rights and aboriginal rights section 15 - slide • remedying historic disadvantage to those groups who have historically been a subject to discrimination • preventing violations of human dignity that occur b/c of stereotyping and prejudice • equality of all persons • idea that law should see all of us as equally deserving of care • back to Natural Law Theory - we have a core of dignity • we have this religion, human essence that must be protected by the law • not just formal equality , but substantive also • what is equality? we know what inequality is (distinctions - group A is treated differently than group B and distinctions are OK the court says - legal classifications need to be in society but destinations that are discriminatory are NOT okay) • discrimination - distinction based on grounds relating to the personal characteristics of the individual or group concerned that has the effect of imposing disadvantages or burdens not imposed on others or of withholding access to advantages or benefits available to others • lists the grounds of discrimination - enumerated grounds (most common grounds - religion, ethnicity, age, gender, disability) • can also be based on analogous grounds (similar things) - sexuality, - look if that group has been prejudiced previously • in order to establish sec, 15 being violated - 1 - a distinction and THEN the distinction has to be based on either analogous or en. ground and 3 - the distinction has to be discriminatory!
