the possibility of change chapter review. the rule of law a concept/principle which suggests that...

The Possibility of Change

Chapter review

The Rule of Law

• A concept/principle which suggests that for law to exist and function properly:

1. There has to be general recognition that there is a need for law.

2. No one is above the law. The law applies equally to everyone.

3. Your rights will not be taken away from you except in accordance with the law.

The Possibility of change is supported by:

• A democratic government:

– Free and regular elections– An independent Justice System– The Rule of Law

Free and regular elections• Elections should be free of coercion and

threats.

• There should be legitimate choices (and more than one!)

• Voting rights should be guaranteed.

• Elections must be held regularly.

An independent Justice System • Citizens must believe the justice system is

impartial.• Otherwise, general respect for laws may be

lost and the system is weakened. Ex. A Judge cannot make a fair ruling if he fears the

government may jail him!

The government and the Justice system must operate somewhat independently of

one another

Separate…

Democracy?

• The people have the power.

Law protects our Democracy!

Law

Democracy

..and our democracy protects our law!

Think about it…

Can you elaborate/explain?

Democracy and Law• A democracy is supposed to allow its people to

advocate for legal change.

• They can do this via (by way of):

-Lobbying (lobby Groups)-Petitions (signatures)-Referendums (people vote on issue)-voting a for a new government (elections)-Requesting a Royal Commission-Challenging laws in court (court challenge)

• Parliament makes the laws.

• Laws can be challenged in court.– By individuals, organizations, or a level of government

• The Supreme Court can deem a law as invalid (of no force or effect)(If they believe it violates any part of our constitution)

• The law may be struck down or Parliament can rewrite the law.

(If they choose to do so)

Some Terminology:• Legislation: a law or a body of laws enacted.

• To legislate: the act of making or enacting laws.

Legislator, Legislature, Legislative assembly

Question: Who are legislators? What do we normally call them?

• Politicians are legislators!

When a court makes a ruling…

• That ruling sets a precedent.

• Precedent: a decision that may apply to future analogous cases.

• Case law/common law system: inherited from England, is a system where previous judicial decisions are followed.

Court Structure• Our courts are set up in a pyramid fashion.

Court Structure• Our courts are set up in a pyramid fashion.

• Cases start in lower courts.

• A decision may be appealed by any party that is unhappy (may be both parties).

• A higher court may agree to hear the issue and rule on it.

R. v. Daviault (intoxication as a defense)

-Supreme court acquitted Daviault of sexual assault because he was too intoxicated to form the necessary intent(complicated).

-This would have set a precedent for using intoxication as a defense.

-In response to outrage, the Federal government passed new legislation that prohibited the defence of intoxication where there is “interference with the bodily integrity of another person.”

(This situation helps illustrate the relationship/balance between the courts and the government.)

R. v. Ewanchuk (implied consent)

• Mr.Ewanchuk was acquitted of sexual assault in a lower court on the grounds that the woman’s behaviour and actions implied consent to his sexual touching.

• On appeal to the Supreme Court, he was convicted. The Justices stated that there was no such defense.

• This could have set a precedent.

Change as a Result of Individual Action• Nelson Mandela Apartheid System (a government policy of racial discrimination and segregation in South Africa until

1990)

Apartheid Timeline: http://cyberschoolbus.un.org/discrim/race_b_at_print.asp

• Louis Riel Creation of Manitoba(Hudson’s Bay Co. sold Rupert’s Land to the Federal Government in 1869)The Métis people turned to Louis Riel to fight for them.

• Henry Morgentaler Abortion rights(Until 1988, procuring an abortion was a criminal act. The Supreme court agreed

that this was a violation to section 7 of the Charter (the right to life, liberty and security of person) and struck down the law.)

We currently have no legislation addressing this issue.

• Sue Rodriguez (failed 1992) Assisted Suicide (Assisting someone in killing themselves remains a criminal offence

punishable by up to 14 years in prison)

In favour of striking down s.241 of Criminal Code

In favour of upholding s.241 of Criminal Code

s.7 Life, liberty and security of the personThe right to life should include the right to choose a dignified time of death.

A shift in values- where life is no longer sacred- may negatively affect vulnerable groups such as persons with mental or physical disabilities or the elderly.

s.15 Equality- able bodied can end their own lives without assistance.

The government must uphold it’s duty to preserve life.

s.12 The right to not be subjected to cruel and unusual punishment.

Inherent ethical, moral and religious issues that is not suited to be dealt with by the courts (rather parliament).

Richard Sauvé Prisoner’s Right to Vote

Convicted of first degree murder, he challenged s. 51 (e) of the Canada Elections Act which denied prisoners the right to vote.

Section 3 of the Canadian Charter of Rights and Freedoms states that all citizens have the right to vote.

• Supreme Court ruled s. 51 (e) unconstitutional and struck it down.

• Federal government passed legislation in response to ruling. New legislation allowed provincial inmates to vote, but denied federal prisoners the right to vote.

• Richard Sauve mounted another challenge and won!

• Parliament was chastised for trying to circumvent the ruling and debasing the relationship between courts and government.

Against prisoners voting

In favour of prisoners voting

They have broken the law and have forfeited this right as part of their punishment.

Prison is both punishment and rehabilitation. The role of voting (enfranchisement) towards rehabilitation outweighs its effect as punishment.

-Any government objective for violating rights has not been sufficiently proven.

It is a right denied in accordance with the law.

The law must be reasonable and fair.

They may influence an election Not likely and their options are all legitimate.

Richard Sauvé: Challenged s.51 (e) of the Canada Elections Act

Tommy Douglas• Born in Scotland, Premier of Saskatchewan 1944-1961-

(Saskatchewan Co-operative Commonwealth Federation).• Led the first socialist government in North America.• Leader of the NDP from 1961-1971.• Fought for the establishment of Canada’s Universal Health Care

policy (1961)• http://en.wikipedia.org/wiki/The_Greatest_Canadian

Change as a Result of Collective Action

• Never really an “individual” – intervenors

• Nelson Mandela ANC

• Sue Rodriguez NDP Svend Robinson

and Right To Die Society

• Richard Sauvé John Howard Society

Lobby Groups• Lobby Groups: a number of people trying to

influence legislators on behalf of a cause.• Consensus in society is needed before changes

come Lobby groups raise awareness. • http://ocl-cal.gc.ca/eic/site/lobbyist-lobbyiste1.nsf/eng/h_nx00261.html

• Montreal massacre at Ecole Polytechnique 1989Coalition for Gun ControlFirearms Act 1995

• Christopher Stephenson murder Canadian Association of Chiefs of Police – Sex offender Registry 1988

• The Canadian Council for Tobacco Control (CCTC) many legislative changes.

List of some Lobby Groups in Canadahttp://polisci.nelson.com/igroups.html

http://www.toptenlinks.com/cat.php/Society%3AGovernment%3APolitics%3ALobbying+Groups

Top 10 Lobby Groups

http://money.cnn.com/magazines/fortune/fortune_archive/1997/12/08/234927/index.htm

CNN Article – Washington's Power 25

• Ad hoc organization – created for a specific purpose.

-OSAID Ad Hoc committee on changing the legal drinking age in Ontario

• National Organization – represents a particular group of people on a permanent, on-going basis.

-CCTC (Canada Council for Tobacco Control)-Assembly of First Nations-Canadian Association of Chiefs of Police

May serve a role as an intervenor (friend of the court)

Royal Commissions

• Government appointed research/investigation of an issue.

• Experts appointed to advise the government on an issue.

• Government may act on findings.-Kriever Commission 1993-Laura Sabia/ Royal Commission on the Status of

Women 1967. (led to maternity leave, gender and marital status as grounds of

discrimination, more judges in courts)

Political Demonstrations

• Charter s.2: “…the right to peaceful assembly”

• Laura Sabia threat of feminist march-1967• Not always effective• Egypt, Libya, Tunisia…Turning points in

history.

Civil Disobedience A Peaceful form of protest by

which a person refuses to obey a particular law as a matter of conscience.

• Gandhi• Mohammad Ali• Martin Luther King/ Rosa Parks

Legal Scholarship

• Testimony of specialists on a particular matter may have a greater influence on a case

• Battered Women’s Syndrome p.25

R v. Lavallee (SCC 1990)• The issue: is expert testimony relevant to her

plea of self-defence

• NOTE: Self defense is only valid to deflect an immediate threat and excessive force must not be used.

• There was no immediate threat-he was walking out of the room when he was murdered.

Does it matter if she really was in danger, OR, if she honestly

believed she was in danger?

see excerpt

The reasonable person standard may not apply.

R v. Lavallee set a precedent for the use of

Battered Women’s Syndrome

as an exculpating factor.