Chapter 1
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
Laws are sometimes divided into “Public Law” and “Private Law”. In this context, “private law” means
What is laws that are concerned with the governing of relationships between individuals?
Canadian law includes rules of statutory interpretation because
What is laws set out by Parliament and the provincial legislatures can sometimes be ambiguous or vague?
In 1982, Canada passed constitutional reform with approval from the federal government and all provinces except for:
Quebec
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
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
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
The Canadian Bill of Rights:
Is a federal statute and not formally part of the Canadian Constitution
The following legal theory holds as a key premise that capitalism is oppressive and must be overthrown:
Marxism
The notwithstanding clause effects
What is the fundamental freedoms of section 2, the legal rights of sections 7 to 14 and equality rights of section 15?
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
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
When it comes to the Trudeau government's decriminalization of cannabis, an anarchist would be most likely to:
Support the move away from criminalization
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