Week 1 - Role of Government and Human Rights

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Questions and Answers

What is the role of the Governor General?

The Governor General's role in legislative processes is ceremonial, providing royal assent to bills passed by both Houses.

Human Rights only exist if acknowledged and enforced by the state.

True

In the context of Canadian law, what is meant by 'The Iron Hand in the Velvet Glove?'

The concept of 'The Iron Hand in the Velvet Glove' refers to the balance between education and enforcement in human rights law.

What are the three areas of the modern principle of statutory interpretation?

The three areas of the modern principle are textual meaning: the literal language of the act; legislative intent: understanding the intention of the legislation; and compliance with established legal norms: how the court interprets the act with reference to other laws. Signup and view all the answers

How do human rights commissions in Canada help to ensure that workplaces are free from discrimination?

Human rights commissions in Canada are established to ensure that workplaces are free from discrimination by holding employers liable for the discriminatory actions of their employees. Signup and view all the answers

What is a "handicap" under Quebec's human rights legislation?

A condition that may not yet impose limitations, but could be perceived as causing unfair treatment. Signup and view all the answers

What are the three branches of government in Canada? (Select all that apply)

Executive Signup and view all the answers

What is the purpose of the Canadian Human Rights Act?

The purpose of the CHRA is to ensure equality and eradicate discriminatory practices. Signup and view all the answers

Which of the following is NOT a component of judicial independence?

Political Security Signup and view all the answers

In the context of Canadian law, what does 'subsidiarity' mean and how does it apply?

Subsidiarity means that decisions should be made at the level of government closest to the affected individuals. Signup and view all the answers

What are the three main aspects of the Rule of Law?

The three main aspects of the Rule of Law are: the law is supreme over the government and private individuals, the creation and maintenance of order of positive laws is essential, and every exercise of public power must be rooted in a legal rule. Signup and view all the answers

Unwritten principles can be used to strike down legislation in Canada.

False Signup and view all the answers

How does the modern principle of statutory interpretation differ from the 'plain meaning rule?

The modern principle of statutory interpretation emphasizes the text, but also considers the context and intention of the legislation, while the 'plain meaning rule' focuses only on the textual meaning, disregarding context and potential reader bias. Signup and view all the answers

Which of the following is a key tension faced by human rights commissions in Canada?

All of the above are key tensions faced by human rights commissions. Signup and view all the answers

What are the two main reasons for the creation of Human Rights Commissions in Canada?

The two main reasons were to address the inadequacies of traditional court procedures and to adopt a more effective, less expensive, and more accessible model for handling discrimination complaints. Signup and view all the answers

How does the 'Living Tree' doctrine impact statutory interpretation?

The 'Living Tree' doctrine allows laws to evolve and adapt over time in response to changing societal values. Signup and view all the answers

Study Notes

Week 1 - Role of Government

Sources and exercises of state power and the constraints on that power are discussed
Division of powers (Federal vs. Provincial) is examined
Separation of powers (legislative, executive, judicial) is explored
Rule of Law (all actors are equal under law, including government) is discussed
D Clément's work (2009) on "Rights without the Sword" examines limitations of rights revolutions in Canada, and the gap between human rights rhetoric and enforcement.
Human Rights are only valid if recognized and enforced by the state.

Need for Human Rights

Common law precedents can uphold discrimination
Human Rights law provides protection against common law
Wickham v Hong Shing Chinese Restaurant (2018 HRTO)
- Issue: Was Wickham subject to racial discrimination?
- Decision: Yes, he was racially profiled
- Rule: Burden on the applicant to show discrimination.
Test for OHR code violation:
- Applicant is a member of a protected group
- Applicant experienced adverse treatment/disadvantage
- Protected ground was a factor in the treatment.
Criteria for establishing #3 (Peel Law Association v Pieters):
- Prohibited grounds need only be a factor
- No need to establish intent to discriminate
- Prohibited grounds do not need to be the cause of defendant's conduct
- No direct evidence required, circumstantial is enough
- Racial stereotyping usually occurs from unconscious biases
Remedial focus: Remedies aim to recognize harm to dignity and self-respect and ensure equal treatment and respect.
Mikisew Cree First Nation v. Canada (Governor General in Council), 2018:
- Duty to consult with Indigenous peoples applies to the law-making process (legislative branch).

Week 2 - Human Rights Law

Human rights law and institutions were intended to change the common-law approach to discrimination.
Human rights law and institutions prioritize education and prevention, with enforcement only when necessary.
Fields of activity and grounds covered by human rights law have expanded over time through legislation and interpretation.
Christie v York (1940 SCR)
- Issue: Right to deny service based on race?
- Decision: Tavern owner has right to deny service due to freedom of contract
- Rule: Freedom of contract allows discrimination.
J Walker, "Race" (1997):
- Viola Desmond sat in white section of a theatre
- Removed and charged with tax fraud (price difference between sections)
- Example of how discrimination is supported by the state.
Gilpin v Halifax Alehouse Ltd (2013 NSHRC)
- Example of how discrimination is supported by the state.

Week 3 - The Constitution & Its Principles

The constitution is both written and unwritten.
Unwritten principles also underlie the constitution
The constitutional principle of the rule of law requires all state action to be exercised in accordance with the law.
The constitutional principle of "federalism" is a division of powers, but one doesn't require a specific division of powers.
Other constitutional principles exist.
Constitutional principles cannot be used to strike down legislation.
Rule of Law: Government action must be sourced and bound in law.
Horizontal Accountability: Accountability between government entities.
Normative Order: Clear governing system of rules and shared expectations.
Main aspects of Rule of Law (identified by Secession of Quebec 1998)
- Law is supreme over government action.
- Creation and maintenance of ordered laws is essential.
Liston (2008): Rule of Law ensures governmental power stems from and is constrained by law, preventing arbitrariness.
Three features of ROL: Prevention of arbitrariness

Week 4 - Legislative Branch

The legislative branch debates and passes statutes.
Parliament has three parts: the House of Commons, the Senate, and the Queen (Governor General).
Each legislature has two parts: the legislature assembly and the Queen (Lieutenant Governor).
Elections are not just about the outcome (Figueroa).
Parliamentary privilege protects the ability of legislators to fulfill their functions (Vaid).
Is parliamentary privilege legitimate? Is the reasoning in Figueroa convincing?

Week 5 - Executive Branch

Executive power is held by the Queen and exercised on her behalf by the Governor General and Lieutenant Governors.
Responsible government: The PM is the person who has the confidence (support) of the House.
PM selects the cabinet.
Hogg, (2005)
Governor General
Executive power held by queen, enacted by Governor General/Lieutenant Governor
Governor General selects PM
The only choices the Governor General can make without PM's advice
PM selects other ministers & advises Governor General to appoint/remove them
The Cabinet:
- all ministers as a group = cabinet
- Supreme executive authority
- Decisions signed by Governor General
Prime Minister:
- Prime Minister (or premier) controls executive branch
- Prime Minister controls legislative branch

Week 6 - Judicial Branch

Judicial impartiality is about having an "open mind"
The three core characteristics of judicial independence are security of tenure, financial security, and administrative independence.
The two 'dimensions' of judicial independence are individual independence and institutional/collective independence (separation of powers)

Week 7 - Statutory Interpretation I

The modern principle (Driedger) – the text is important but is not the only consideration (text/context).
Rizzo & Rizzo Shoes Ltd. (Re) – statutory interpretation takes legislative intent into account (and avoids absurd results).
Disagreement is possible over interpretation (Mossop).
Understanding different types of interpretation (rules, principles).

Week 8 - Statutory Interpretation II

The modern principle is applied in ways for courts
Human rights legislation is 'quasi-constitutional'.
The scope of grounds can be extended or narrowed through statutory interpretation

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Description

This quiz explores the roles and limitations of government power, focusing on the separation of powers and the rule of law. It also discusses the need for human rights protections against discrimination, referencing significant cases and legal principles. Engage with key concepts and legal precedents in understanding the intersection of government authority and human rights.