Theories
We discussed a number of legal theories that can help us to understand the Canadian justice system from different perspectives. The following legal theory assumes that judges and other legal thinkers can be trained to make legal decisions without reference to their own personal bias:
Positivism
The notwithstanding clause effects
The fundamental freedoms of section 2, the legal rights of sections 7 to 14 and equality rights of section 15
Laws are sometimes divided into “Public Law” and “Private Law”. In this context, “private law” means
Laws that are concerned with the governing of relationships between individuals
In the ‘Patriation Reference’ case, the Supreme Court of Canada decided that Prime Minister Trudeau could lawfully proceed with constitutional amendments without provincial support. The Court noted that this was ill-advised based on:
Political convention
Canadian law includes rules of statutory interpretation because
Laws set out by Parliament and the provincial legislatures can sometimes be ambiguous or vague
The following legal theory holds as a key premise that capitalism is oppressive and must be overthrown:
Marxism
Established by the Supreme Court of Canada in this landmark case, this two-part test helps courts determine whether limiting a Charter right is justified under Section 1 of the Charter.
In 1982, Canada passed constitutional reform with approval from the federal government and all provinces except for:
Quebec
We reflected on the historical significance of a famous photo in which a member of the Manitoba Legislative Assembly holds an Eagle feather while putting forth a ‘no’ vote on constitutional amendments. The photo represents Elijah Harper’s protest against the:
Meech Lake Accord
A Canadian court is faced with a decision requiring application of a federal law. In the case at hand, the law would result in an absurdity and the court interprets the law in order to avoid the absurd result. This is an example of the application of
The golden rule
When it comes to the Trudeau government's decriminalization of cannabis, an anarchist would be most likely to:
Support the move away from criminalization
This section of the Canadian Charter of Rights and Freedoms states that Charter rights are not absolute and can be subject to reasonable limits that are justified in a free and democratic society.
Section 1, the limitations clause
The Canadian Bill of Rights:
Is a federal statute and not formally part of the Canadian Constitution
In Multani v Commission Scolaire Marguerite-Bourgeoys (2006), the Supreme Court of Canada considered a rule that applied to a Sikh student, which prohibited him from wearing his kirpan at school. Multani was successful in his claim, which was made under:
The Canadian Charter of Rights and Freedoms
There are two rules that are essentially the mirror of the other. Which rule states that when general words follow a list of specific examples, the general words are limited to things similar to those examples?
The limited class rule
In 2021, the Government of Canada introduced Bill C-7 (An Act to Amend the Criminal Code (Medical Assistance in Dying). This new law introduces changes to the ‘reasonable foreseeability of death’ requirement in the context of medical assistance in death (MAID). A positivist would be most likely to:
View the law as valid since it was properly introduced by the federal government
Section 1 of the Canadian Charter of Rights and Freedoms allows the courts to ‘save’ a law that imposes “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This section is analyzed only after:
A court determines that a right in the Charter has been violated
The constitutional amendment process that took place under the leadership of former Prime Minister Pierre Trudeau in the early 1980s is often discussed in relation to enactment of the Canadian Charter of Rights and Freedoms. Another important constitutional change that was made at the same time was:
A new constitutional amendment formula
We considered the Supreme Court of Canada’s decision in R v Jordan. This case sets limits on:
The length of time it can take for a criminal trial to be processed
When a statute involving a penalty is ambiguous, and other rules of interpretation cannot resolve the ambiguity, this rule requires courts to interpret the law in the way that is most favourable to the person facing the penalty.
Rule in penal statutes
Based on our course readings and discussions, Indigenous groups would most likely say that the court’s decision to find a violation of the right to equality on the facts of Fraser v Canada (the RCMP job-sharing program case):
Rightly addressed colonial laws that resulted in unequal treatment of the women
The notwithstanding clause in the Canadian Charter of Rights and Freedoms was recently used by a provincial government in relation to a law that:
Prohibited religious symbols for public sector employees
In a civil case, the plaintiff is responsible for proving their claim, while in a criminal case, the Crown must prove the accused committed the crime. What is this responsibility called?
The burden of proof
In R v Kapp, the Supreme Court of Canada considered a challenge advanced by non-Indigenous peoples to a law that permitted some Indigenous peoples to participate in a communal fishing program. The argument was that the exclusion of non-Indigenous peoples from the program violated: the right to __________ under the Canadian Charter of Rights and Freedoms.
Equality
In the case of Gorris v Scott, in which Gorris attempted to sue Scott for the loss of his sheep, the courts ruled Scott was not at fault as the need for animal cages was only to prevent the spread of diseases. This case illustrates what statutory interpretation?
The mischief rule