Week 8 CSS 1190: Constitutional Law PDF

U.S Presidential Election Review Team Room Update Are referendums made on the National level? - Less common federally. There has been three total in Canada on a national level - Prohibition 1898 - Conscription 1942 - Charlottetown Accord 1992 - Normally initiated at the local or provincial...

U.S Presidential Election Review Team Room Update Are referendums made on the National level? - Less common federally. There has been three total in Canada on a national level - Prohibition 1898 - Conscription 1942 - Charlottetown Accord 1992 - Normally initiated at the local or provincial level. - Typically initiated by the people. https://www.thecanadianencyclopedia.ca/en/article/refer endum  CSS 1190 The Political Process and Social Work Week 8 Constitutions, Courts, and Laws What is a Constitutional Government? Liberal democracy …is based on the perspective that there should be limits on the power and scope of government, that government should abide by the rule of law, and that the rights of the people should be protected from arbitrary actions by government. Constitution exists to protect these inherit rights of the citizen class What is a Constitution? A constitution establishes the fundamental rules and principles by which a state is governed. It determines which institutions have the authority to make laws and governing decisions and the relationships among those institutions. A constitution also lays out the basic relationship between government and the people, including rights and freedoms. The Canadian Constitution The Canadian constitution can be considered a combination of a variety of elements.  The Constitution Act, 1867 is the core, written element of the constitution.  The Constitution Act, 1982, is an amendment to the Constitution Act, 1867.  Various other legislative statutes and orders-in-council are part of the formal constitution.  As well, constitutional conventions (or customs) that establish important principles that determine the functioning of the system of governing. Charter of Rights and Freedoms The Constitution Act of 1982 repatriated the constitution from the United Kingdom, making the constitution fully Canadian Created the Charter of Rights and Freedoms, establishing the constitution as the supreme law of Canada PM Pierre Trudeau achieving the repatriation” /bringing home of the constitution from the UK to Canada. Officially sovereign form the UK. https://www.youtube.com/watch?v=f4tg_BbLqbw Charter of Rights and Freedoms Guarantee of Rights and Freedoms: Basic standard of living and quality of life Canadian Charter of Rights and Freedoms Fundamental freedoms Democratic rights Mobility rights Legal rights Equality rights Language rights Unlike the American Bill of Rights, provisions relating to affirmative action and group rights are included (e.g. multiculturalism) Six (6) basic provisions under the Canadian Charter of Rights and Freedoms Fundamental Language Democratic Mobility Rights Legal Rights Equality Rights Freedoms rights Rights Protect The right to Right to life, Every person Declaration The right of freedom of move and to liberty and is equal under that English all citizens to conscience pursue security of the law and and French vote and hold and religion, livelihood in the person, has the right are the official elected office and freedom any province the right to to the equal languages of of opinion and be secure protection Canadian expression against and equal Canadians Basic goals unreasonable benefit of the whose mother and values of search or law without tongue is the Country arbitrary discrimination either English detention, the on grounds as or French right to be race, origin, have the right presumed colour, to have innocent until religion, sex, children proven guilty age, mental educated in Procedure for or physical their own passing laws disability language where numbers warrant Canadian Charter of Rights and Freedom Why was it introduced? 1. Previously there was no reflection in the constitution of the protection of rights and freedoms, other than the right to use English or French in Parliament 2. Clearly Canadian history has demonstrated the need for a protection of Rights and Freedoms given the treatment of Indigenous Peoples and the incarceration of Japanese and Italian Canadians during WWII (internment camps) http://laws-lois.justice.gc.ca/eng/Const/page-15.html Charter of Rights and Freedoms The reasonable limits clause (Section 1) of the Canadian Charter of Rights and Freedoms explicitly allows for laws to place reasonable limits on rights and freedoms, provided that the limits can be “demonstrably justified in a free and democratic society” For example, o Limits on possession, production, and distribution of pornography o Prohibit expression of hatred directed at certain groups o Place limits on advertising directed at children Liberal democracy: limitation of powerful governments. Charter of Rights and Freedoms Section 33 of the Charter allows Parliament or a provincial legislature to override some rights by using the notwithstanding clause (only effective for five years, although it can be re-enacted) Notwithstanding clause: A provision in the Charter of Rights and Freedoms that allows Parliament and Provinces to override some rights that do not align with the Constitution. However, it is only effective or five years, although it can be re-enacted multiple times. This was a compromise by Pierre Trudeau to get the Premiers to agree to the constitution. 1986 Sask.back 1988 Quebec 2018 Quebec to work law- legislative government overturn court passed a law protecting its decision that that did not “religious government permit neutrality” law… could not fund languages other women show non Catholic than French on faces when students signs outside receiving a public attending stores. service Catholic schools. It Is rarely ever used given how strong the Charter of Rights and Freedoms is Why do you think the reasonable limits clause was introduced? Why is it important? Constitutional Amendments Constitutional Amendments made due to changing circumstances and changing values of the country or desire to improve it In Canada, ordinary laws such as Canada Elections Act can The Constitution Act 1982 be changed by adoption of a proved difficult to achieve new law: House of Commons Meech Lake Accord and Senate A province has Different views: English A referendum a right to “opt speaking Canadians / French can be used to out” of a speaking Quebecers, seek approval Indigenous Peoples = constitutional for changes changes difficult to achieve amendment Constitutional Amendments Meech Lake Accord, 1990 Attempt to have Quebec sign the constitution under the agreement of Quebec being a “distinct society” Did not win approval in Newfoundland and Manitoba legislatures Charlottetown Accord, 1992 Included the recognition of the inherent right of Indigenous peoples to self- government and changes to the Senate Decentralize Federal powers to the Provinces Defeated in a referendum, with a 55% “No” vote National referendum because the Conservative party of Canada, led by Mulroney, received negative attention that the Meech Lake Accord was constructed behind closed doors. Feared losing an ensuing election of 1993. Constitutional Amendments Meech Lake Accord, 1990 Attempt to have Quebec sign the constitution under the agreement of Quebec being a “distinct society” Did not win approval in Newfoundland and Manitoba legislatures Charlottetown Accord, 1992 Included the recognition of the inherent right of Indigenous peoples to self- government and changes to the Senate Decentralize Federal powers to the Provinces Defeated in a referendum, with a 55% “No” vote National referendum because the Conservative party of Canada, led by Mulroney, received negative attention that the Meech Lake Accord was constructed behind closed doors. Feared losing an ensuing election of 1993. 20 minutes …. The Supreme Court of Canada Judicial Review In some countries (including Japan, Australia, Italy, and India), the courts have the authority to strike down legislation or governmental actions that violate the constitution. While the power of judicial review was not explicitly stated in the American constitution, or the Canadian Constitution Act 1867, both courts have assumed this role. The Supreme Court of Canada remains the highest level of law. Supreme Court of Canada Created in 1875, the Court is open, impartial and independent It is the country’s final court of appeal Has jurisdiction over disputes in every area of the law It is the guardian of the Constitution and Canadian Charter of Rights and Freedoms They hear and decide cases according to common law and civil law legal traditions. Supreme court has answered reference questions related to the Federal government’s right to legislate activities such as same sex marriage, Senate reform and medical assistance in dying have been In 2022, the Court heard many criminal law appeals and cases concerning taxation to child custody Class Discussion “Some argue that involving judges in determining the validly of legislation makes the judiciary too powerful and interferes with the principle that the judiciary should be separate from politics. The political significance of the courts makes the process of selecting judges very important. “ (Mintz et el 2021) How should Judges be chosen? Notable Decisions made by the Supreme Court of Canada The Supreme court rules that the Council of Canadians with Disabilities can challenge BC’s mental health laws The Supreme Court finds constitutional a new procedure in the Criminal Code for deciding if a complainant’s private documents can be used by an accused in a sexual offence trial The Supreme Court rules that a court in the United Arab Emirates can decide the custody of two resident children who travelled to Ontario with their Canadian mother The Supreme Court rules that an online police investigation targeting people searching for sex with children was not entrapment The Supreme Court rules that when someone is required by their partner to wear a condom during sex but they do not, they could be guilty of sexual assault. The Supreme Court finds the mandatory and lifetime registration on the sex offender registry unconstitutional. Judicial Review: Why is this important? Same sex marriage in Canada  Legal union of one man and one woman was discriminatory and violated the equality rights within the Charter of Rights and Freedoms  In 1999, Supreme Court of Canada ruled that same sex couples were entitled to receive many of the financial legal benefits associated with marriage.  July 20, 2005, by Royal Assent, Bill C-38, Civil Marriage Act became law.  Canada became the fourth country to take this step: Netherlands (2001, Belgium (2003) and Spain (2005) Which two provinces were the first to legalize same sex marriage in Notable Supreme Court Judgements 1988 struck down a law that made abortion a criminal offence unless authorized by a hospital committee. Violated “security of the person” 1995 prohibited discrimination against a persons sexual orientation. Violated “equality rights” 1997 police cannot enter a home without a search warrant. Violated “the right to be secure against unreasonable search or seizure” Examples of Debates of Freedoms and Law Bill C- 92 Act Respecting First Nations, Metis and Inuit Children, Youth and Families VS section 35 of the constitution. Bill C51: Anti-Terror Bill Bill C16: Addresses the Human Rights of Gender identity and Gender Discrimination Bill C384: Legalization of Assisted Suicide Missing and Murdered Indigenous Women & Girls Inquiry Legalization of Marijuana “Rights Culture” Fostering the common good in a society “….too much emphasis is place on individual rights in countries such as Canada and the United States without a corresponding concern for the responsibility of individuals to each other and to their community. i.e. right to vote carries the responsibility to make an informed decision about the common good for the community” Are we fostering the common good in a society when the focus is on the rights of the individual neglecting the rights of the common good? What do you think? Should the judicial system be independent of government? How can we ensure the judicial system remains impartial and fair? Court Systems Courts are hierarchical in nature. Appeals in lower courts heard in higher courts Unified Courts system: same court used for cases involving most laws under federal or provincial jurisdiction Federally appointed judges used in all but lowest provincial courts Provincial courts are responsible for the organization and administration of all courts except the Supreme Courts of Canada Legal Systems Statutory International Common Law Codified Law Private Law Criminal Law Law Law A system of A law A system of Law that Responsibilit Law that law-based passed by law based deals with y of the deals with judgements legislative on the the Canadian economic that have body adoption of relationship government globalizatio accumulate a s among. n and d over comprehens individuals, Criminal law increasing centuries ive set of groups and compiled in concern principles businesses an Act of about that judges that are Parliament human use to primarily of knowns as rights determine private the Criminal the interest Code outcome of rather than a particular of general case public interest 3 types of legal systems used in Contemporary World Common law Civil Law Sharia Law Used in England and Quebec uses Civil law Based on the Qur’an, most of the former System of law the teachings and British colonies predominate on the practices of In Canada, 9 European continent Mohammed, and provinces use and Louisiana Islamic jurisprudence. common law Historically, American uses influenced by the Deals with private Common law codes of ancient behaviour and beliefs Body of law created Rome as well as public by judges and similar behaviour and is used quasi-judicial tribunal in varying extends in based on court many Muslim decisions rather than countries codes or statutes Terrorism and Rights In the wake of terrorist attacks, governments have taken strong measures to deal with terrorism Some of the “war against terrorism” measures have been criticized for violating the rule of law and individual rights and freedoms After 9/11 attacks, measures were taken to capture “foreigners”, including juveniles, and jail them for lengthy periods. As of 2018, 40 prisoners remained at Guantanamo Bay, most of whom have been held there for 10 years without charges. President Trump had not released any prisoners other than one prisoner who was sent to Saudi Arabia for further imprisonment. Class Reflection: Terrorism and Rights Question #1 Should the rule of law (no one is above the law) and civil liberties (freedom of press, religion, expression, assembly, security, liberty, speech, privacy, equal treatment, conscience) be suspended when a country is faced with terrorist threats? Question #2 Does the treat of terrorism justify extraordinary measures ? With the growing use of assassinations of foreigners by drones, this often results in killing people not involved in terrorism (children). Should terrorism be fought without substantial changes to the rights and freedoms of liberal democracies?  Canada’s Anti-Terrorism Act Combatting Terrorism Act 2001 2013 Held 72 hours, imprisoned for up Limit freedoms of suspects, to 12 months, non Citizens can lengthy prison terms for those be held indefinitely or returned harboring a terrorist. to home country Canadian Security Intelligence Service (CSIS) Anti-terrorist Act 2014, Bill C- National Securities Act 2018, 51 CSIS Bill C-59 To take any action it considers Creation of new National reasonable to “reduce…threats Security and Intelligence Review to the security of Canada” i.e. Agency to review actions of CSIS breaking the law, violating the and CSE (communications Charter of Rights and Freedoms security establishment) Basic Legal Framework Courts are important in The ensuring that constitution people establishes accused of Where there is various rights violating the a widely and freedoms law receive a accepted for the fair trial, but constitution-the population. also in Constitutions power of those Courts have interpreting reflect a in governing the authority and reviewing fundamental positions to review laws and consensus becomes legislation and government among legitimate government actions to Constitutio citizens about authority as ensure they actions to n provide a governing long as laws are compatible determine basic their country and procedures with the whether they framework are followed constitution. are consistent for with the governing constitution.