The possibility of change
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The Possibility of Change. Chapter review. The Rule of Law. A concept/principle which suggests that for law to exist and function properly: There has to be general recognition that there is a need for law. No one is above the law. The law applies equally to everyone.

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The Possibility of Change

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The possibility of change

The Possibility of Change

Chapter review


The rule of law

The Rule of Law

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

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

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

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


The possibility of change is supported by

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

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

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

Separate…


Democracy

Democracy?

  • The people have the power.


The possibility of change

Think about it…

Law protects our Democracy!

Law

Democracy

..and our democracy protects our law!

Can you elaborate/explain?


Democracy and law

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)


The possibility of change

  • 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

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

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

Court Structure

  • Our courts are set up in a pyramid fashion.


Court structure1

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

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

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

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.


The possibility of change

  • Sue Rodriguez (failed 1992)  Assisted Suicide

    (Assisting someone in killing themselves remains a criminal offence punishable by up to 14 years in prison)


Richard sauv prisoner s right to vote

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.


The possibility of change

  • 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.


The possibility of change

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


Tommy douglas

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

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

  • 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 1989Coalition for Gun ControlFirearms 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 canada

List of some Lobby Groups in Canada

http://polisci.nelson.com/igroups.html

Top 10 Lobby Groups

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

CNN Article – Washington's Power 25

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


The possibility of change

  • 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

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

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

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

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

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.


The possibility of change

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

R v. Lavallee set a precedent for the use of Battered Women’s Syndrome as an exculpating factor.


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