Blaw02a - Elements of Law Part One Part I The Canadian Legal System And How It Works Unit 2 The Canadian Constitution and the Charter of Rights and

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Unformatted text preview: Elements of Law - Part One Part I The Canadian Legal System And How It Works Unit 2 The Canadian Constitution and the Charter of Rights and Freedoms © 2007 Captus Press Inc. Module 1 Parliamentary Sovereignty and the Written Constitution © 2007 Captus Press Inc. © 2007 Captus Press Inc. 1 Elements of Law - Part One Functions of a constitution It sets out rules and procedures for making law. It sets out guidelines for the administration and interpretation of the law It set out guidelines for and limits on the use of legal and political power It sets out individual rights that are to be exercised free from state intrusion, along with the means to enforce them. Written and unwritten constitutions Unwritten constitution: may consist of practices, usages, customs and convention, ordinary statutes and some interpretative case law Written constitution: may consist of one or two basic documents that deal with fundamental issues © 2007 Captus Press Inc. 2 Elements of Law - Part One The Canadian Constitution: principal documents Royal Proclamation of The Constitution Act, 1867 [British North America Act 1867] Statute of Westminister Constitution Act, 1982 Module 2 The Charter of Rights © 2007 Captus Press Inc. © 2007 Captus Press Inc. 3 Elements of Law - Part One Rights are not absolutes Reasonable limits The limits are prescribed by law The limits can be demonstratively justified in a free and democratic society Fundamental freedoms Freedom of conscience and religion Freedom of thought, belief, opinion and expression Freedom of peaceful assembly Freedom of association © 2007 Captus Press Inc. 4 Elements of Law - Part One Democratic rights Guarantee of free elections, the tenure of legislatures limited to 5 years Annual legislative sessions required Mobility rights The right to live anywhere in Canada The right to earn a livelihood anywhere in Canada © 2007 Captus Press Inc. 5 Elements of Law - Part One Legal rights S.7: the right to life, liberty and security of the person S.8: the right to be free of unreasonable searches and seizures S.9: the right not to be arbitrarily detained S.10(a): the right to be informed of the reason for detention S.10(b): the right to retain and instruct counsel, and the right to be informed of that right S. 10( c): the right to question an illegal detention by way of habeas corpus Rights on being charged with an offence: s. 11 The right to be informed of the specific offence without delay The right to be tried with a reasonable time The right not be made to give evidence against yourself in respect of the offence you are charged with The right to the presumption of innocence The right to reasonable bail © 2007 Captus Press Inc. 6 Elements of Law - Part One Rights on being charged with an offence: s. 11 (cont’d) The right to a jury trial for serious offences The right not to be found guilty of an offence unless it was a crime when it was committed The right not to be tried twice for the same offence. The right to the lesser penalty, if the penalty for an offence has been reduced at the time of sentencing. Equality rights Equal protection and benefit of the law No discrimination on the basis of race, national or ethnic origin, colour , religion, sex., age, or mental or physical disability Laws discriminating in favour of disadvantaged groups is permitted © 2007 Captus Press Inc. 7 Elements of Law - Part One Language rights S. 16 states that English and French are official languages of Canada and New Brunswick S. 17 states that English or French may be used in Parliament and the New Brunswick Legislature S. 18 states that the records and proceedings of Parliament and the New Brunswick legislature shall be published in both languages S. 19 permits either language to be used in Federal courts and in the courts of New Brunswick Language rights (cont’d) S. 20 creates a right to service in either language from the head or central office of a federal government department and from branch offices where there is a demand. New Brunswick guarantees services in both languages from any office of an agency or department. Section 21 and 22 provide that there will be no interference with language rights guaranteed by other parts of the Constitution © 2007 Captus Press Inc. 8 Elements of Law - Part One Language rights in education S. 23 protects the rights of English and French minorities to education in their language when they reside in a province where the majority official language is other than the one they speak. The type of education right depends on 3 criteria o Citizens whose mother tongue is English or French and who reside in a province where that language is a minority language, have the right to have their children receive primary and secondary education in the minority language. Language rights in education (cont’d) o Second come rights based on parents language of education. Citizens who have received primary school instruction in English or French in Canada and who reside in a province where English or French is a minority language, have the right to have all their children receive primary and secondary education in that minority language. o Third come rights based on equal treatment of children: Citizens of Canada of whom any child is or has received primary or secondary education in English or French in Canada, have the right to have all of their children educated in the same language. © 2007 Captus Press Inc. 9 Elements of Law - Part One Module 3 Enforcement of Charter Rights © 2007 Captus Press Inc. Enforcement of the Charter Only the state can violate charter rights The courts have the power to grant remedies Courts can rule a statute invalid or inoperative Courts can “read” constitutional requirements into legislation, effectively amending the legislation © 2007 Captus Press Inc. 10 Elements of Law - Part One Module 4 Enforcement of Other Rights and Freedoms © 2007 Captus Press Inc. Group Rights Section 25 guarantees the treaty rights or customary rights of aboriginal peoples, including any rights that First nations may acquire as a result of negotiation of land claims. In addition the proclamation of 1763 which guarantees to aboriginal people ownership of their lands except where they have ceded land to the Crown by treaty, continues in force, and provides a legal basis for aboriginal land claims, and enforcement of treaty rights. © 2007 Captus Press Inc. 11 Elements of Law - Part One Group Rights (cont’d) Section 26 guarantees other rights and freedoms generally maintained by custom and convention, by statute or by other parts of the constitution. Section 27 states that the multicultural heritage of Canada is deemed to be preserved and enhanced by the interpretation of the Charter. Section 29 preserves the rights of some religious groups to state funded religious schools without offending s. 15’s equality rights provisions. Module 5 Who Does What: The Division of Powers Under the Constitution © 2007 Captus Press Inc. © 2007 Captus Press Inc. 12 Elements of Law - Part One The Division of Power The framers of the constitution intended: a strong central government with broad powers. provinces to be restricted to local matters Provinces’ Powers The provinces push hard to expand their own powers. The provinces’ powers are set out in s. 92 Section 91 sets out the federal powers and gives the central government the power over many activities affecting business that involve interprovincial or international trade and commerce. Most important s. 91 reserved all residual powers not specifically given to the provinces to the federal government. © 2007 Captus Press Inc. 13 ...
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This note was uploaded on 01/16/2011 for the course ADMS 2610 taught by Professor Joshuasera during the Fall '10 term at York University.

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