2009

Canadian and International Law

CLN4U
Michael Herdes

Mike Herdes 9/28/2009

Module 1
Act 1 Six Questions I want answered by taking this course: 1. Why is a "Life Sentence" in Canada only 25 years? 2. In Canada we are considered "Adults" at the age of 18, our charter of rights and freedoms also guarantees that we will not be discriminated against based on age, yet there are laws restricting people under 19 from buying alcohol or tobacco in certain provinces. How is this legal? 3. If someone breaks the law, and the circumstances seem to justify breaking the law, who decides if an exception to the law is appropriate? 4. How does the Queen affect our law and the process of creating laws in Canada? 5. In the USA presidents can issue pardons to anyone convicted of any crime. Is this the same in Canada? 6. There are laws protecting freedom of religion in Canada, but how far does this extend? Act 2 2. a) In the early 20th century women were not considered equal to men. It was also less acceptable to for women of that time to wear revealing clothing or bathing suits like we see today. This bylaw was likely created because of the views the mostly male influenced society held. b) In the past there were no vehicles capable of cleaning the sidewalks of Toronto. Because cars were less common when these older laws were created people probably used sidewalks much more frequently. The society of the time must have valued having a clean path to walk on. c) This law was probably created because too many people were spitting in areas where other people would find it disgusting. The law was likely created by the influence of what was socially acceptable at the time. d) At one time in Kentucky there may have been a problem with people walking (or riding) their pigs down the street. People riding in vehicles were probably unhappy about how slow they were forced to go by the animals and this law probably came about from their complaints. e) There must have been some sort of problem in Alaska where people were feeding moose alcohol for whatever reason. Most people would probably find this unacceptable (or just really strange). The law probably came about because people thought it was a problem and such behavior didn't fit in with what was considered acceptable. f) This law might have been created because the flowers attracted insects to the streets. Its also possible that flower shop owners would not want street vendors to take away from their business.

3. This prayer tells us that the society considers it ok for politicians to be open about their religious affiliation. From this prayer we can make the assumption that most of the society is religious and that they look to "God" for guidance even when making political decisions. The prayer seems to encompass most religions; its not affiliated with a single religion. This prayer also tells us that the culture of Canada is one that values peoples beliefs and it is a culture where people can believe different things (as the prayer is open to most beliefs). The prayer tells us that Canada is a society that values freedom, peace and opportunity. Act 3 2. a) Because the 10 commandments can be considered "religious doctrine" it is a primary source. b) The presumption of innocence until proven guilty is a primary source of law because it has originated from original sources of law such as customs and conventions and our social views of justice. c) This is a secondary source of law as it is one that is written down and legally binding. d) This is a secondary source of law as it is one that is written down and legally binding. 3. Stature law: Federal: Divorce Act, 1985 Provincial: Highway Traffic Act (Ontario) Municipal: Chapter 530, DOGS (Kitchener, Ontario)

8. a) The idea behind res judicata is that once a decision is reached by a judge the decision is final. In the case against Mr. Buke a decision was reached by the jury, but when it was read to the trial judge he mistook the verdict of guilty for one of not guilty. Once the mistake was realized the judge overturned the verdict (going against the idea of res judicata). Justice Goudge did not completely agree with the way the trial judge handled the situation, he believed that the judge should have questioned the jury to find out if his recorded verdict was a mistake or not. His view seems to be that res judicata ensures that a person's liberty will not be left in the dark. b) Justice Dickson argued that while in most cases the principal of stare decisis creates certainty in the law in this case, because of the "compelling reasons", it would create more uncertainty than certainty. If I was a judge on this case I would probably agree that decisions in previous cases cannot always dictate the decisions in a current case as the values of our country and our society is always changing. If we always followed the decisions of previous cases there would never be advances in our law and this would not represent the changes in our society. Important Terms Ultra Vires - outside of its jurisdiction Intra vires - inside of its jurisdiction Statute law - Law passed by our elected representatives Orders in council - documents containing the details of statute laws Common law - law based on judicial decisions. Collectively referred to as case law.

Tort law - law dealing with negligence Impartiality - Judge must not allow their feelings to reflect in their verdict Ratio decidendi - Reason for deciding Res judicata - once a judge reaches a decision the decision is final Act 4 1. Substantive law refers to our collection of written laws and codes. An example of this is the Highway Traffic Act. In contrast procedural law deals with the steps that must be followed in any legal action. For example there are procedures for collecting evidence, if this is not followed the evidence may not be used in court. 3. In a criminal case the crown must prove beyond any reasonable doubt that the defendant is guilty. In a civil case the plaintiff must only present evidence that shows his/her story is more likely to be true. 5. a) Although I would not usually support a country taking legal action against one of its citizens for something that happened outside of its borders, this is a very serious and violent crime. It would be irresponsible for France to allow their citizens to get away with such a horrible action. If France did not take action in this case its likely the problem of "sex holidays" would only grow. b) A lot of problems could come out of such a situation. The accused would have a strong legal deference that is the crime happened outside of the country's borders (and therefore its jurisdiction). The citizens of the country would also have mixed views on this situation. While most would want justice for the girl that was raped they could also worry that France would start to prosecute them for any crimes (according to France Laws) that they commit in other countries even if they were not serious. This could also hurt relations between France and other countries as it would seem they are trying to impose their laws on everyone. c) At times Canada's law regarding crimes that happen outside of its borders makes more sense. It would not hurt the relation between Canada and other countries. Also citizens of Canada would not have to worry about being prosecuted by Canada for smaller crimes they commit in other countries where the action is legal (For example: Smoking marijuana). However if a country allowed crimes to occur like the example in the text book Canada would not be able to take legal action. I agree with Canada's law for smaller crimes, but when the crime is murder or rape there should be consequences for Canadian citizens even if the country they committed the crime in will not prosecute them. In my opinion the best solution for this problem would be international laws that would allow countries to prosecute their citizens for serious (and only serious crimes that hurt others) crimes committed in countries where laws against such crimes do not exist. d) There are certain activities in Canada that, while they may be dangerous for the individual engaging in them, they do not hurt others yet they are illegal in Canada because they are considered socially unacceptable (drug use for example). I do not think Canada should be able to prosecute people for any of the activities listed in the question; Canada cannon extend its laws into area's outside of its borders. Many laws are based on what is socially acceptable in a given country and this of course is different from country to country, we must accept this and not enforce the laws of Canada on citizens when they are outside of the country. The only exception for this (in my opinion) should be when a country has no laws dealing with serious crimes that cause harm to others, like murder or rape. In such a case Canada should take action.

Important Terms Substantive law - body or collection of laws described in the statutes, codes and judicial decisions. Procedural Law-refers to the proper steps that must be taken an applied in every and any legal action. Act 5 1. Civil Law: has two main meanings. It can mean the section of law that governs the relationship between individuals (not the state). Example: when one person sues another. Civil law is also the system of law based on coded or statute law. Example: Our system of written down law dealing with private issues (tort, property, contract, estate, corporate, consumer, family). Common Law: has 3 different meanings. It is law based on past legal decision as well as our customs. Example: Case law; law based on previous legal cases. It can also mean law that came from Britain. Example: the system of law that has originated from Britain. And its final meaning is law that is equally applied to all people. Example: In a common law society everyone is equal in the eyes of the law, (including government officials). 2. a) Court of the Exchequer - Tax court of Canada b) Court of Common Pleas - Provincial Court c) Court of King's Bench - Court of Queen's bench 6. The "logic" behind the trial by ordeal and trial by combat was that "God" would judge who was innocent and give them the power to survive the ordeal or win in combat. 7. a) Early communal courts are similar to the Aboriginal system of justice because the focus of the court is to solve the problem not to punish. Both systems of justice focus more on community values. b) I think it is important for a judge to consider the cultural values of a community when making a decision, however it is also important that justice is served equally (epically in the case of more serious crimes). I think this system of taking input from the community would be better used for less sever crime. An advantage of this system is that it allows restorative justice to take place. A disadvantage is that someone who is not well liked or understood in their community could end up with an unfair or biased trail. Act 8 Pg. 83, Q. 1-3 1. Tyranny is the unrestrained exercise of power or the abuse of power. If someone referred to democracy as the "tyranny of the majority" I would assume that they mean the majority of people use the power they have to discriminate against and create laws that are only in their interest and against the interest of minorities. I would have to agree that democracy often results in laws that allow the majority to do what they want to do and results in laws negatively affecting minorities.

2. Jurisdiction is the territory in which a body of authority has power or control. Sovereignty is the ability of the highest power in a nation-state to use its power on its citizens within the area it has Jurisdiction. (A state may create any law they choose within their own territories). The difference is that Jurisdiction is the physical area in which an authority has power and sovereignty is the authority to create any law a those in the highest power feel necessary. 3. International law and organizations like the UN limit the concept of sovereignty because they create boundaries for the types of laws nation-states can create and impose on their citizens. If a country creates laws that violate international law the UN can step in and impose sanctions on violation countries. Pg. 80 1. From my understanding the Senate is suggesting that the way we think about animals is changing to support the idea that animals should be given more rights. In my opinion there is a lot of evidence suggesting that the Senate is correct; today we have many more animal activists and charity groups than ever before. It's clear that people care more about animals today, people understand that animals have feelings and thoughts just like us. There is a growing trend, people are taking more interest in how animals are treated, and example of this is the seal hunts (in Canada). They have gone on for many years but only recently have people started to ask the question "are the seal hunters treating the animals fairly". 2. Many things will change in 100 years. Our views on issues affecting us and our world are always changing. There are many things we look back at today in disgust (Examples: In Canada women were not always considered "people" and they did not have the same rights as men, We once enslaved people for manual labor, In some areas of the world it was considered acceptable for old men to marry very young girls.) The way many animals are treated today is barbaric. They are used for tested medical drugs, often resulting in their pain and suffering (even today we still debate if animals feel pain, but if you have ever worked with animals its clear they have very similar feelings to ours). In 100 years from now I doubt anyone will debate that animals feel pain, we will have a better understanding of how animals feel and we may even have new ways of communicating with them. I also think people will look back and realize how relaxed (unfortunately) our laws about animal cutlery are. Act 9 1. Related concepts to "Law" and "Justice": Law: Order - this relates to law in two was. Firstly law is used as a tool to keep order in our society, it prevents people from doing anything they want and it provides a standard for what type of behavior is acceptable (and it holds us accountable to these standards). Law is also something that has a particular "order" to it. From the way we make laws to the way we must collect evidence for it to be used in court. Everything about law has a certain order to it. Responsibility - Law holds us responsible for what we say and do. Justice: Equality - Justice is about being fair and equal as much as possible. If a white person was given better service at a restaurant only because of the colour of their skin and people of colour were not given the same standard of service this would go against the idea of equality, and we would call it unjust.

Morality - When we consider what we find "just" we often look to our own morals. Our morals are our own ideas on what we find fundamentally right. 2. To see the difference between law and justice you only have to look at their definitions. Law is a collection of rules and obligations used to keep order in our society. Law is usually written down and upheld by some type of authority. Justice however is something much more personal. Most people consider "Justice" to be the morally or ethically right thing to do in a given situation. However everyone has different views on what is "the right thing to do". Because of that some people would consider some laws and the outcome of many trials to be unjust even thought they were part of the law. Others would argue that law is justice. Clearly the term "justice" has a much more open meaning then that of "law".

Types of Law: Natural Law: supports believe that it is human nature to do good. There are certain ideas and rules that exist in nature that we are bound by. It applies to all of mankind. Positive Law: Law and justice are two very different things. Law is only the opinion of what is right based on who is in power. Some supporters believe that law must be followed no matter what in order to insure order. Divine Law: All just laws come from god. Our law is the product of gods will and any law that violates divine law is invalid. Act 10 Page 95, 1-3 1. Plato believes that one can benefit from acting unjustly (or against the law). In his opinion it is harmful to oneself to follow the law. 2. Plato: If everyone performs to the best of their abilities there will be justice People are not all equal Aristotle: Resources should be shared among community members If people are unequal they may be given unequal shares Individuals should be rewarded based on their own merit, performances and civic duties. Cicero: Fairness, Justice and Equality should underline all law Law and justice come from both man and god State should not enact "Evil laws" (laws not in common interest), even if the majority approves of them, as such laws go against nature 3. Plato believed that people are unequal and therefore do not need to be treated equally for there to be justice. Based on that I dont think Plato would support all of the social programs in Canada. The goal of the social programs is equality and Plato did not believe in that.

Viewpoints 1-2 1. Thomas Aquinas held the view that man obeys the law because humankind is naturally good. His idea was that law should be created to "lead men to virtue" (in other words the law should lead us to excellence in the way we live our lives and how we treat others). He believed that all natural law is based on the idea that good should be done and evil should be avoided. On the other hand Saint Augustine believed that "God" will reward the good and punish the evil. He thought that the only why for there to be true justice would be for the "City of God" to come to earth. He was clearly a strong believer in Divine law and based on his views we can assume that he believed people did good because of the fear of being punished by "God" not because people are basically born with the desire to do good. 2. Thomas Aquinas (T): What's your opinion on the idea that "humans do good because they are naturally good"? Saint Augustine (S): I dont think that humans are born good, we are all sinners and therefore we cannot be "good" without the help of god. (T): But why than do people naturally do good. Why is it that many of us recognize that good should be done and evil should be avoided. (S): Some people will do good, but they do this good not because they are born good, but because they fear the punishment of God. (T): Do you not see that there are laws of nature in place, it is our nature to do good because we want that same good done to us. We should not do good because of a fear of punishment, but because we are naturally responsible for what we do. Therefor our laws should be made to inspire good in all people. (S): The only way for just laws are created is by the work of God, for a law to be just it must be inspired by god and not go against any divine laws. Laws do not inspire good, they only create a fear of punishment causing people to avoid that punishment by doing good. (T): I think it will be impossible for us to come to an agreement on this topic, while I also believe in god I do not believe that people are born without the inspiration to do good. It is clear to me that there are natural laws in place that apply to all of humankind. Philosophers of Law: Plato: Everyone performing to the best of their abilities = justice People are unequal, society therefore should not treat people equal Ruler of society would be a "philosopher king", wise enough to administer justice, picked based on achievements, education and ability to rule Originally thought that there was no need for laws, as its too abstract and does not address that people are unequal Eventually realized it would be impossible to find a philosopher king and questioned how the king would avoid corruption Aristotle: Justice should aspire to equality Fair sharing of resources among community members If people are unequal they may be given unequal shares Individuals should be rewarded on their own merit and performances of civil duties

Judges should depart from laws in a difficult case Cicero: Fairness, Justice and equality should undermine all law Law and justice are part man part God State should not enact "Evil Laws" (laws not in common interest, even in approved by people such laws go against nature Justinian: Two parts of law: Universal (observed by all people), Civil Law (specific to certain society/community) All people are born free Saint Augustine: Believed in Divine Law, God will reward good and punish evil Ideal justice only achieved when "City of God" comes to earth Church has moral duty and authority to check on abuses of the state Church has veto over any actions that violate "gods law" Thomas Aquinas: "Law is made for common good" Man obeys law due to his own good Good is to be done, and evil is to be avoided Thomas Hobbes: Atheist and Republican Security and protection of peace are fundamental to justice Justice depends on the existence of a superior power Ruler must have all authority to protect life, property and contract People need government to regulate their relationships People have a contract to the state John Locke: Individual rights trump collective rights Constitution should be based on natural law People have the right to self preservation Law should restrain people from "doing hurt to one another" Need to set limits on the power of the state Natural for people to accumulate more than others Sole purpose of government should be to protect people from the arbitrary acts of others Jean-Jacques Rousseau: Society corrupts us, social structure encourages self-interest State should govern according to the general will of the people Jeremy Bentham: Laws should be based on what is practical and realistic Dismissed natural law Law should be the "greatest good for the greatest many" John Austin: Law should: "Enable the greatest possible advancement of human happiness" Ethics and morality should play no part in determining if a law is good or bad

John Stuart Mill: Law should be useful Be more concerned with the well-being of others Ideal happiness is "happiness for all concerned" Act 11 Page 100, Q. 5 1. I would most likely support Noam Chomsky's views on law. I think it is true that law today is made to serve those in power (in some countries more than others). Chomsky also believes that there is a link between the elite class and law makers, I think this is epically true in the USA. An example of this is the link between corporations and the government: "Its also important to note that in the USA top corporation employees often hold high office in the Government, (for example the Bush Administration hired over 100 high ranking officials, previously lobbyists, attorneys or spokespeople to oversee the same industries they once worked for). These appointed officials often influence the government to work in a way that would benefit the company or industry they once worked for (an obvious conflict of interest not to mention outright corruption). " - Part of an article I wrote for an English Class I think it is true that the majority of the public is kept happy because serious political issues and very important information is withheld by the media. I believe that if the public was more aware about how their government worked (particularly in the USA) people would be less happy and more likely to do something about it. Act 12 1. Captain Vere has a strong regard for the law, it is his opinion that if we only look at the action and reaction in this case, (Billy hits the superior officer - the officer dies) than the crime must be treated as a capital one and Billy should be sentenced to death. He understands that the law often operates without compassion for the circumstances behind the "action and reaction" and he believes that we should still follow through with what the law states. In this case Captain Vere knows the circumstances are exceptional but he will not allow the feelings in his heart to change his regard for the law and how it should be applied. He holds the view that law should be applied Impartiality, in other words he will not allow his feeling to affect this case and therefore he must sentence Billy to death. 2. Captain Vere holds ideas and values about the law that are in consonance with the positivist school of thought. "Positive's" such as Thomas Hobbes argued that following the current law is fundamental even if justice is not done. Captain Vere is sticking with the law even though he feels justice will not be done. He is sticking with the law to preserve order as some "positive's" would argue is the point of law. People who support the "Natural" law supports often argue that moral principles must be part of the legal system, if Captain Vere agreed with this he would definitely allow his moral views to interfere with the current law, however this does not happen. 3. In the defense of Billy Budd I would argue that the circumstances behind any actions must be taken into account when the law is involved. Clearly what happened with Billy and the superior officer was not an intentional murder. He hit the officer but such a hit would not normally cause death. This fact alone sets him apart from other murders. I would further argue that for the law to

ultimately achieve justice Captain Vere would have to take into account everything that happened. If we simply follow the law word for word, are we not prisoners to it? How could society ever progress if we were bound to always enforce the same laws? I would argue that by following the law the Captain is going against his own moral values and the principals of justice. Act 13 Pg. 112-117, Q. 1-3 1. As a society Canada has come a long way from when it was first formed. Many things have changed in the last few years, in regards to women's rights and minority group rights. One change that shows our society has become more open minded is the Civil Marriage Act. Basically this act allows for same sex couples to marry and have the same benefits as all other married people. The act became law on July 20, 2005; before than some Provinces and Territories allowed for same sex marriage, but not all. This shows that Canadians are more tolerant or understanding of gay people, it also shows that religion is starting to have less of an influence on us as a society. The main argument against gay marriage was that it went against the religious definition of marriage (however if we were to take into account everything the bible says about marriage we would have to create many more laws than just those against gay marriage*). Another example of how Canadians have become more tolerant is our views on the use of marijuana, both for personal use and for medical reasons. Studies show that the majority of Canada's population support the decriminalization of marijuana.** While marijuana has not yet become completely legal in Canada it seems that it is heading that way. On July 30, 2001 medical marijuana became legal in Canada.*** While thats not full decriminalization it does set the path for marijuana to become legal in Canada. 2. Drunk driving has been an issue for quite some time, but today more than ever people are very intolerant of drunk drivers. I think this is partly because today we are all well educated on the dangers of impaired driving through T.V. ads, school education programs and the news. Today people have a great understanding of the dangers of drunk driving and it is definitely not considered socially acceptable to drive after drinking. There are many programs now in place that provide an alternative mode of transportation for people who have had to much to drink and we are often encouraged to designate a sober driver before going out. For those who do choose to drink and drive (in Ontario) they face huge fines (not to mention massive increase in their insurance rates) and even a criminal record.+ In Ontario a law was recently passed that will make it illegal for drivers under 21 to operate a vehicle if they have a BAC over 0.00%, in other words there is no tolerance for drinking and driving. + +this shows that our society values the safety of everyone using our roads. Another issue that is constantly coming up in the news is texting while driving. While its a relatively new topic it has almost instantly become an unacceptable activity to engage in while behind the wheel. This issue has started to appear more in the news because of the many accidents that are happening because people are focused on their phones rather than the road. Some studies show that texting while driving is more dangerous than drunk driving! # recently lawmakers have been looking for ways to make our roads safer and in Ontario a bill was recently passed that will make it illegal to use a phone while driving. While many people admit to texting and driving the vast majority recognize it as a hazard.

3. It is quite significant that three juries acquitted Dr. Morgentaler because it shows the vast amount of support he had and the change in our society's views on abortion. Even though he was openly defying the law there was such a strong opposition to the laws regarding abortion that not a single jury would find him guilty. This also shows that our society has come to value women's rights much more than it once did, and the Supreme Court clearly stated that the criminal code violated their rights and therefore the law was struck down. Sue Rodriguez What was Sue Rodriguez trying to accomplish when she lobbied the government of British Columbia? By lobbing the government of British Columbia Sue was attempting to change the laws regarding assisted suicide. She suffered from ALS and she only wanted to live while she could still enjoy life, but by the time she would no longer wish to live she would need assistance in ending her life. The law allows people to end their own life, but it does not allow others to assist them in ending their life. It was her goal to legalize assisted suicide. Should physicians who assist an individual in committing suicide lose their medical license? Based only on the current law a physician who assists an individual in committing suicide could be charged under the criminal code, if they were found guilty they would definitely lose their license. (241(b) of the Criminal Code). However based only on my own opinion the physician should not lose their license, provided that there is a justified reason for the suicide (the individual is suffering by living, they are terminally ill, ect). The reality is that they are helping someone do something that is completely legal and something that will end the persons pain and suffering. However if there was a possibility or certainty that the patients condition could get better it would be inappropriate for the physician to assist the person in committing suicide (for example if someone was suffering from depression, their situation can get better and suicide is most likely not the right answer). Which sections of the Charter of Rights did Rodriguez use to challenge Canada's law prohibiting mercy killing? To challenge Canada's law on mercy killing Sue Rodriguez used sections 7, 12 and 15 (1) of the Charter of Rights and Freedoms. What final decision did the Supreme Court make in the Sue Rodriguez case? Do you feel it was an appropriate ruling? Do you agree with the ruling? Explain why or why not. The Supreme Court sympathized with Sue but they dismissed her appeal because the court determined that section 241(b) was not "contrary to the principles of fundamental justice". The court decided that the law did not violate her rights as granted by the Canadian Charter of Rights and Freedoms, but the decision was a very close one with five out of nine members voting against her appeal. I do not agree with the ruling nor do I think it is appropriate. Suicide is legal in Canada, if someone is terminally ill or has a condition that limits their ability to enjoy life (to a point where it warrants ending their own life) they should have the option of ending their own life in a respectable way, even if they need assistance in doing so. I fully believe that forcing Sue to live without any enjoyment in her life is cruel and unusual punishment and violates her rights in part 12 of the charter. If Sue is suffering to such an extent that she feeling ending her life is the best option what right do we have to make her continue this pain and suffering (especially when it will only get worse with ALS).

*Other rules regarding marriage from the bible http://whitehouse.georgewbush.org/dof/images/marriageproposala.jpg http://whitehouse.georgewbush.org/dof/images/marriageproposalb.jpg (From the parody white house site.) ***About, Canadian Medical Marijuana Regulations http://canadaonline.about.com/cs/marijuana/a/medmarijuana.htm **SES Research, Canada - Decriminalizing Marijuana http://www.sesresearch.com/library/polls/POLNAT-W03-T113.pdf
+OTT Legal Services

http://www.ontariotraffictickets.com/impaired-driving/index.htm
++Legislative Assembly of Ontario

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=2118&detailPage=bills_detail_status #Car and Driver, Texting while driving http://www.caranddriver.com/features/09q2/texting_while_driving_how_dangerous_is_it_-feature ##Admit it! Do you talk or text on your cell phone while driving? http://www.newsvine.com/_question/2009/07/23/3056506-admit-it-do-you-talk-or-text-on-your-cell-phone-while-driving-

Act 14 Page 129, Q 1, 3-5 Our legal system is something that is highly complex. While positivists believe our laws are based on the moral values of those in power this is clearly not the case (at least in Canada). Our laws represent what the community values and as a democratic society we have many safeguards to ensure that our laws continue to represent what we as a community of people believe in. In Canada we elect representatives to act on our behalf and share our voice in parliament. These representatives have the power to vote on proposed laws and they allow everyone to have a voice in creating our laws. Any law that our government proposes must be approved by the senate and the Governor General, it would be no easy task to make the laws only represent the views of those in power. It is in the best interest for those in power to create laws that represent what society finds right because if they don't they can quickly be voted out of power. Before the Canadian Charter of Rights and Freedoms became law the Supreme Court did not have as much power as it does today. In the Therens case the court now had to take into account the rights guaranteed to all Canadian citizens before making a ruling. Although Paul Therens was clearly driving while intoxicated the charges against him were dismissed because of the way the evidence was taken and because he was not informed of his rights by the police. Its significant because if law enforcement does not properly collect evidence and inform suspects of their rights there evidence may now be thrown out of court. The Court must now insure the rights of the accused are upheld and if there not the court can strike down a case against them. In another case (R. v. Lavallee, [1990] 1 S.C.R. 852) the court had to rule on whether or not "battered women syndrome was a defense for killing an abusive husband. The appellant had been in an abusive relationship. One night after an argument with her husband (that lead to him beating her) the appellant shot her husband in the back of the head as he left her room. The Supreme court ruled that the appellant should be acquitted because of the circumstances. This decision will change the way that other judges must deal with cases that involve the defense of "battered women syndrome". I think that the problem of illegal videotaping is being over played by groups like the MPAA. While it is true that some people will come to a theater and video tape movies the majority of them are not looking to sell their tapings or profit off them. I don't think the movie industries is losing any profit from illegal videotaping, not only is the quality terrible but the reality is if someone really wants to see a movie they are going to go to the theater and enjoy it in quality. It may be true that thousands of people are downloading videotaped movies off the internet, but the film industry cannon say that every

download is a lost profit, many of the people who are downloading videotaped movies online would not pay to see the movie if that was their only option. If movie producers want to stop the illegal videotaping of movies they should look for devices to place in movie theaters that would distort images recorded by cameras (but not affect the audiences viewing of the movie). * This would not affect the audience and it would prevent theater staff from having to worry about people with cameras. I think the big problem with applying this type of law is proving that the video tape intended to distribute the film for profit. There would also be a big cost in applying this type of law, the movie theaters would have to inform the public that videotaping is illegal, employ people to ensure no one is videotaping movies and they may have to interrupt a film if someone is.
*US Patent 6529600 - Method and device for preventing piracy of video material from theater screens http://www.patentstorm.us/patents/6529600/description.html Other Source: Movie Piracy Claims More Fiction Than Fact http://www.michaelgeist.ca/index2.php?option=com_content&do_pdf=1&id=1656&task=view

There are two main safeguards to ensure that the government does not abuse this power, firstly any declaration of an emergency by the government must be reviewed by Parliament and all temporary laws created under the act will be subjected to the Canadian Charter of Rights and Freedoms. The act also includes a compensation scheme for those who have suffered damages as a result of the Act.
Source: http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/prb0114-e.htm

Act 15 One Page Summary: John Locke Throughout human history there have always been people who standout, not just in their intelligence but in the way they use their ideas to improve our lives and the way we interact with each other. Philosophers such as John Locke have interesting thoughts on how the law should work and what must be done to achieve justice. While I cant say I agree with him on everything I do think Locke makes a good argument for all of his opinions. Below are the five main points I think best summarize Lockes arguments regarding law and justice. John Locke was a strong supporter of natural law. It was his opinion that constitutional law must be based on natural law. To love our neighbor as ourselves is such a truth for regulating human society, that by that alone one might determine all the cases in social morality. John Locke. Like other natural law supporters he believed that it was human nature to do good. However Locke also believed that we are born as empty minds and that education, as well as experience shapes us into who we are. It was John Lockes opinion that No man's knowledge here can go beyond his experience. Individual rights were also very important to John Locke, he believed that: Man... hath by nature a power .... to preserve his property - that is, his life, liberty, and estate - against the injuries and attempts of other men. In the quote above Locke argues that it is self-evident that by the rules of nature everyone has the right to life, liberty and property. From this and his other writings its clear that John Locke believed that individual rights trumped collective rights. Locke extends his ideas on individual rights further when he talks about what powers government should have. As said before he believed any constitution a government creates must be based on natural law, however he also says that there must be a limit set on the power of the state. In his opinion

the Government has no other end, but the preservation of property. Unlike other philosophers (Jeremy Bentham, Thomas Hobbes, ect) His view of a just government was one that protected the rights of individuals to their property (life, liberty and estate).He believed that there was no need for the government to go beyond that. As Locke said Liberty is to be free from restraint and violence from others. Locke viewed law as a way of creating freedom and equality for everyone. He argued that the goal of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom. Lockes views on equality were well ahead of his time. He believed that his view of law would promote freedom and he wanted to ensure that law would not restrain the rights of anyone. In Lockes eyes justice was done when one could exercise their rights (so long as they themselves did not infringe upon the rights of others) and when their rights were not infringed upon by others. Lockes views on the accumulation of wealth seem to fit very well with our ideas on wealth today. In his opinion individuals should be free to apply everything they have to gain wealth, he also wrote that it would only be natural for some individuals to accumulate more than others. Locke seemed to be far from a communist, but he also wrote that Our incomes are like our shoes; if too small, they gall and pinch us; but if too large, they cause us to stumble and to trip. Proposed Laws: The use of Random Spot Checks to Catch impaired drivers: John Locke wrote that the purpose of the government should be to protect individual rights and that law should strive not to restrain, but to protect freedom. While Locke lived in a time before the car his ideas can still be applied to this context. In my opinion Locke would not support impaired driving (as it would endanger individuals using the roads); however I do not think he would support random spot checks as a way to deter impaired driving. I think he would find that random checks would go against his ideas on the right to liberty and the use of law as a way to promote freedom. A law that permits euthanasia: Locke undeniably believed in God and held the bible in high regard. Many religious people are against euthanasia as they believe it goes against Gods will. However Locke seemed to believe in the separation of church and state, he denied divine law and insisted on individual freedom. Based on Lockes ideas on individual freedom I believe he would support permitting euthanasia, as he said Every man has a property in his own person. This nobody has a right to, but himself. Locke ideas and writings lead me to believe that he would not want anyone to try and control another person even if they were trying to end their life. Proposal to legalize theft: Locke was a supporter of Natural Law; he believed that some laws were self evident. One of Lockes strongest positions was that it should be the job of the government to protect individuals from the arbitrary acts of others. Locke would never support the legalization of theft as it would go against just about everything he stands for, including the idea that individuals have the right to protect their property.

DNA databank: As a strong supporter of individual rights I do not believe Locke would support such a system. I think he would say such a system would go outside of the boundaries government should have. He also believed that it was part of our nature to do good and I think he would find such a system unnecessary. I dont think Locke would see it as a way to promote good, but rather a way for the government to have more power over its people, something he is undeniably against. Arrests based on ethnicity to combat terror: Locke was a believer in equality; he wrote that everyone must be equal before the law. He also wrote that we are all equal and that we should not harm one another. Arresting people based on their ethnicity would definitely go against Lockes views on equality. I believe he would also see this law as a way of protecting the majority by going against individual rights, another thing he is strongly against. Locke would also be against the idea of such people defending themselves without legal representation; I believe he would find it to go against their rights to preserve their liberty. Limiting Client-Lawyer relations: From what I have read about John Locke his opinion on such a question is not easy to find. I think his biggest problem with this proposal would be forcing the lawyer to disclose a confession if their client did confess. I believe Locke would find it to go against both the lawyers freedom and their clients rights. Locke writes that everyone has the right to protect their life, liberty and property, in my opinion he finds these rights so important he would not agree with the proposal even if it would make punishing the guilty easier. Decriminalizing possession of drugs, prostitution and gambling: Locke believed that everyone had the right to their own bodies and that no one should try and interfere with this right. People against the decriminalizing of drugs, prostitution and gambling often argue that decriminalizing such activities would hurt society as a whole. However Locke believed that the rights of an individual trump that of society. Based on all of that I would have to say Locke would support the idea of decriminalization of the said activities.

Module 2
Act 1 What is a constitution? Develop a concept web to answer this question. Explain why it is important for a democratic nation to have a constitution. A constitution can be described as an established set of rules that define how power and authority are distributed within a certain country. It usually outlines limitations on such power and outlines the principles which the government is founded upon. A constitution is often in the forum of a written document (codified) but it is possible to have an unwritten constitution (uncodified). It is important for a democratic nation to have a constitution because there must be some way of outlining who has power and authority so that a country can run smoothly and fairly. A constitution insures that everyone will be aware of the governments powers and the limits of such powers. Explain the purpose and importance of the BNA Act. Hw did the lack of an amending formula pose a problem for the development of Canada's constitution. The British North America Act essentially made Canada into its own country, but one that would still be mostly controlled by British Parliament. The document was the bases of Canada's Constitution and it molded Canada after Great Britain. The act outlined how power would be divided by the different levels of government in Canada. This was an important act because it granted Canada some separation from Great Britain (making Canada into its own country) and it also gave Canada its own constitution. The lack of an amending formula meant that the federal government of Canada had to ask the parliament of Great Britain to make changes to the constitution of Canada. This became a problem as members of Canada's government were not happy that they would have to ask another country to make changes to their own constitution. What three forces influenced the patriation debates? -The need for an amending formula to be created so that Canada could amend its constitution without involvement by Britain. -The concerns of Quebec's nationalism ideas and the possibility of Quebec separating from Canada -Prime Minister Trudeau's idea that the human rights of all Canadians needed better protection

Act 2 Identify three components of Canada's Constitution. Briefly explain each one. Canada's constitution is comprised of many different components some well documented while others are completely unwritten. Conventions are an example of a mostly unwritten component of Canada's constitution. Basically conventions are the generally accepted way of doing things; they can't be legally enforced but they are followed by political leaders because they are expected to act in such a way. Many features of how our government works are unwritten conventions, including the idea that Canada is a democracy. Conventions keep the government running smoothly and in a predictable way. Common law can be defined as the judgments made in previous legal cases. When judges make a decision regarding a case it becomes part of our common law and when similar cases come up in the future the decisions made in the first case are used to interpret the often generally written legal language. Common law helps to clarify what is meant by our constitution and how it should be interpreted. Because the views of society are always changing it is possible for the courts to add to or alter pervious decisions in common law. Its also important to note that common law cannon be found in a single written document, because it comes from so many different legal cases. Another important aspect of Canada's constitution is the British North America Act (and all of its amendments). The BNA Act could be described as the backbone of Canada's Constitution as it originally made Canada into its own nation. It outlines how Canada runs as a country, including how power would be divided at federal and provincial levels. It also clearly states how Canada's constitution would be "similar in principal" to Great Britain's constitution. While the BNA act left many aspects of how government would run up to conventions it was still an important document and it still applies to us today. Explain the significance of the Royal Proclamation, 1763. The Royal Proclamation, 1763 was very significant because it made all of the common law of England binding in North American territory controlled by the British. The act also gave the Crown possession of all non-privately owned land. Equally importantly it defined the rights of Aboriginal peoples and made clear the relationship between the Crown and the Aboriginals. The act stated that the Crown and the Aboriginals would act as nation to nation and it outlined that while the Crown would own the land the Aboriginal people would be allowed to use and occupy the land. Even today the act is important as it is used to uphold the rights of Aboriginal people in Canada. Explain why conventions are integral to the functioning of Canada's Constitution. Conventions complete the Constitution of Canada as many aspects of how our country is supposed to run are left unwritten and thus up to conventions. Our conventions keep our country running smoothly and at the same time they are easily upheld, if someone in government decided not to follow conventions they would almost certainly be voted out by the public and other members of the government. Conventions exist both in our constitution and our parliament they are always at work and remain an important part of Canada.

Identify three advantages and three disadvantages of having a constitution that comprises some unwritten conventions and common law. Advantages: 1. Common law can change with the times. Courts are able to add to or change previous decisions. This allows the law to reflect changing public opinion and it ensures that the law will not become outdated. 2. Conventions keep everything predictable without being set in stone. They allow our government to run smoothly and in a way that everyone can expect. 3. Common law helps to define the written law for certain situations. Because our laws are often generally or even ambiguously written it is hard to maintain a constant definition for what the law is trying to say. By using the decisions of previous cases in current case we keep the law fair and equal for all. Disadvantages: 1. Conventions are in no way legally binding. While conventions are almost always followed they are not written down in legal forum. Potentially this could lead to an important convention not being followed. However if this was to happen the people and the media have the opportunity to respond negatively to the group or individual not following the convention. 2. Common law cannon be found in a single document and thus some parts of our common law could be forgotten or excluded when an important case it taking place. 3. It is hard to get an idea of everything included in Canada's constitution as it is not all written down. Some constitutions give you a very clear idea on how a country is to be operated. However because Canada's constitution includes unwritten conventions, only an outline of how the country is to be run is included in the written constitution. Act 3 Understanding Identify two advantages and two disadvantages of a federal style of government. Advantages: 1. A federal style of government helps to keep the needs of the people at the four-front of what the government is doing. The two levels of government allow laws to be made that can encompass the ideas and values that are present in certain areas of a country, but may not be present in other areas. This aspect of federal style governments makes them effective in geographically larger countries. 2. Neither the provincial or federal jurisdictions have superiority over each other. This stops the possibility of conflict between the laws the different levels of government are making. The levels of government can also be allocated different issues to create laws based on what is relevant for that level of government. Disadvantages: 1. A federal style of government has the possibility of creating inequality between provinces in many areas including health care and how natural resources are handled. It is possible that one province could create laws that the rest of the country would not agree with. 2. Because there are two levels of government there is always the possibility that they may disagree on what level should make laws on particular issues. Because of this it is necessary to clearly outline what each level of government has jurisdiction over especially when new issues come up.

Explain the concept of residual power and why it was allocated to the federal government. Do you think residual power would be better allocated to the provincial level of government? Explain why or why not. Residual power simply means that any issue that is not designated to the provinces or not at all listed would be under the jurisdiction of the federal government. In my opinion residual power has been given to the right jurisdiction. I think the provinces have jurisdiction over all of the issues that pertain to them, thus any other issues that come up should be under the authority of the federal government. Distinguish between intra vires and ultra vires. Explain how these concepts are used to resolve issues regarding the division of powers. The difference between intra vires and ultra vires is weather something is inside or outside the authority of a jurisdiction. Intra vires means that it is within the authority whereas ultra vires means it is outside the authority. Because the power to make laws on different issues is divided between two levels of government in our federal system there is the possibility of conflict between the two levels regarding who can make laws for certain issues. If this situation was to arise a court can decide which level of government is acting intra vires its authority and what level is acting ultra vires its authority, thus deciding what is the proper level to make the law. Explain how the pith and substance doctrine was used in the Reference re Firearms Act in making a final judgment regarding the legality of the federal action. The Firearms Act was created by the federal government and the government of Alberta thought that the laws being created by the federal government went ultra vires its jurisdiction. The act created by the federal government required gun owners to register and license their firearms, even though provinces held the authority to make laws regarding the regulation of property and licensing. The Supreme Court used pith and substance to decide that the Firearms Act should be upheld. This was based on the idea that the goals of the Firearms Act was to keep the public safe, which the court viewed as a criminal law matter (putting it under federal jurisdiction). While the act infringed on the jurisdiction of the provinces the primary intent of the law was to protect public safety, a federal matter. Connections: Explain the purpose of a constitution for a non-profit organization. In a non-profit organization the purpose of the constitution is to govern the organization. The constitution should create and clearly define how the members of the organization will work together as well as how the organization will work with the general public. It should also create a base for legal responsibility for the members of the organization. How is accountability maintained in fundraising charities? How can consumers protect themselves from charitable scams? A non-profit organization must have three people listed on their board of directors. These three people are legally responsible for the actions of the charity and they have many responsibilities within the organization. They must ensure that the charity peruses its objectives and that it does not take on activities that are outside of its purpose. The board of directors are accountable to the public and they must ensure that the money collected from fundraising goes towards the goals of the charity. Consumers can protect themselves in many ways, they can get involved with the charity and research it to ensure that it is in fact legitimate. They can use resources like the OPGT website to find tips on donation to charities and if they find out about a charitable scam they can report it on that website.
http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/charities/

Assume you are to set up a non-profit corporation. How would you ensure that a strong legal framework is established to govern the operations of the organization? Summarize the mandate for your directors. To ensure there is a strong legal framework governing the organization it should be made very clear what the board of directors are responsible for and what the main function of the charity is. I would ensure that all directors would be aware of their responsibility and what they are accountable for. I would set up standards that all directors would have to maintain. Directors would have to take full responsibility to ensure that the charity strived to achieve its financial goals and its objectives of providing help to those in need. They would be required to ensure that money would be collected and used responsibly in a way that works towards the goals and objectives of the charity. They would be responsible for reporting how money is being collected and spent and ensuring that there were no conflicts of interest (such as a fundraising company being used that was owned by one of the board directors in the example provided in the text book). Act 4 Distinguish among the roles of the three branches of government and explain the significance of each. The Legislative Branch of government is comprised of both the senate and members of the House of Commons. The role of this branch is to accept or reject laws. This significance of this branch of government is that it decides the laws of Canada. The Executive Branch is responsible for the management and operation of the government. Included in this branch is the Prime Minister and his/her cabinet ministers. This branch of government creates draft bills and recommends bills to the legislative branch for consideration. Significantly this branch runs the government and it allows the Prime Minister or Premier to control the agenda of the Legislative Branch (because the two branches overlap). Finally the Judicial Branch of government has the very important job and responsibility of settling disputes and clarifying the law. It acts as a third party between the other two branches of government. The other branches of government must respect the no-interference policy of this government, that is government officials cannon interfere with those that work in the Judicial Branch (including court officials and judges). Explain why it is important for the judicial branch to be independent of the other branches of government. This branch is responsible for settling disputes between the other two branches of government because of this it must remain independent of the other branches or there would be a clear problem of bias in its decisions regarding the disputes. Remaining independent and avoiding interference from government officials ensures that the laws are being applied fairly and corruption is less likely. If this branch of government was not independent the public would most certainly question if the court decisions are being made without bias or if the decisions are corrupt. Describe the principle of legislative supremacy. What impact did the patriation of the Constitution have on this principle? The principle of legislative supremacy is that the final and ultimate authority to make or dismiss a law is with either the provincial or federal government based on what jurisdiction the law is under. After the patriation of the Constitution and the Canadian Charter of Rights and Freedoms was introduced this principle was drastically changed. Before the change happened the majority of issues were based on witch level of government had jurisdiction on particular issues, after the patriation and Charter most of

the issues were regarding the Charter of Rights and Freedoms. The other change was that the courts could now strike down laws based on whether the court felt they violated the Charter, before this power to dismiss laws was only with the legislative branch of government. Clearly legislative supremacy is no longer the same. The position of the prime minister has sometimes been referred to as a "benign dictatorship". Explain what is mean by this term. Benign literally means un-harmful or even beneficial, dictatorship means absolute power. In this case I think the term means that the Prime Minister is in some ways a dictator, but he/she uses the power in a way that is beneficial for the country, not for their own good. Act 5 Summarize the pre-legislative stages in how a bill becomes law. The first step in the pre-legislative stage is for an idea of a bill to be reviewed by the inner Cabinet. This group almost always includes the prime minister and finance minister. After this group has looked at the possible bill they present it to the full cabinet. At this stage the ideas in the bill are debated by the full cabinet and often changes are recommended. At this time the bill is sometimes leaked to the public so that the government can judge the reaction and see if the majority of people are in favor of the ideas in the bill. Finally when the bill is approved by the cabinet and government lawyers have written the bill in legal text it can be presented to the Parliament. During this time the Management Boards reviews the bill and estimates what it will take to implement the bill (financially and other means). Once everything is given final support by the cabinet the bill begins the Legislative stages. What concerns might be raised regarding the rather secretive way in which ideas are debated and molded in the pre-legislative stages? How could these concerns be addressed? When things are done in a secret manner there is almost always concerns as to why there is a need for them to be hidden from the public view. I think it is concerning for the public that the ideas are molded and debated in private because people want to know what is going on in their government and if they are hiding things or doing things in a secretive way people will want to know why. I think people also want to know what ideas are being debated and what some of the original ideas were during the starting steps of the bill, not knowing this can be concerning because people want to make sure all of their concerns and ideas are address and if the government is creating bills in secret it is hard for the public to be sure their opinions are being taken into account. To address these concerns people have to become involved in their government and ask questions (like why are the initial steps in creating bills being done in secret). The government should also better explain and provided legitimate reasons as to why they create bills in such secretive ways. Why are the ideas that are debated by Cabinet and the upper bureaucracy often leaked to the public? The ideas discussed and debated by Cabinet and the upper bureaucracy are at times leaked to the public because the government feels it is important to judge the publics response to the bills before going any further with them. It is important that the public majority responds positivity towards bills the government introduces, especially in a democracy because the bills the government creates should reflect what the majority of people will be happy with. Compare the terms of the Meech Lake and Charlottetown Accords. Both the Meech Lake and Charlottetown Accords were drafted as a way of obtaining Quebec's signature on the Constitutional Act. The Meech Lake Accord focused mostly on extra rights for Quebec as a

province, the accord asked for recognition of Quebec as a distinct society, a greater role for Quebec in regards to immigration, a role in appointing judges into the supreme court, a limiting factor on the federal government from spending money in areas considered under provincial jurisdiction and also veto power for the provinces in regards to constitutional changes. In contrast the Charlottetown Accord focused less on specific rights for the province of Quebec. In this accord the focus was on both Quebec and minorities. The accord asked that the aboriginal peoples govern themselves, a reform in the senate, better equality for males and females in the constitution, a better recognition of group and individual rights. Furthermore the Accord included the idea that Quebec should have a minimum of 25% of the seats in the House of Commons. While both accords included specifics for Quebec the Charlottetown Accord focused much more on issues that personally affected the entire country. Act 6 How would freedom of speech be restricted by common law? In Canada there are certain laws that restrict what we can say. While we have the right to freedom of speech, this right like others can be restricted. For example we have laws that make it illegal to spread hate propaganda, because of this our right to freedom of speech is limited. In cases where people feel their rights to freedom of speech are violated the courts must decided how to interrupt the law and our rights and freedoms, as these decisions build up common law is created. This common law becomes the basis for how far our rights extend and in what circumstances they can be limited in. How did the Bill of Rights differ from the Charter with respect to legislative authority? There are many substantial differences between the Bill of Rights and the Canadian Charter of Rights and Freedoms. Most notably unlike the Charter, The Bill of Rights was a regular federal stature, meaning it could be easily changed or amended. In contrast the Charter is much harder to amend, because it is part of the constitution many steps must be taken for any of our rights to be amended or for rights to be added. In terms of legislative authority the difference is that the legislative branch of government cannot change or amend the Charter like they could the bill of rights. To change or amend the charter would require the federal parliament and the legislatures of two thirds of the provinces (with minimum 50% of the population) to agree to the proposed changes. Clearly our rights are much better protected with the Charter of Rights and freedoms. Explain what is mean by "constitutional supremacy". Provide and example. Basically "constitutional supremacy" means that the constitution is superior over any other laws. If it is determined that a law is not within the provisions of the Charter it can be declared invalid (so it is of no effect). They have been many cases where laws have had to change because they did not fit in with the rights and freedoms as granted by the Charter. An example of constitutional supremacy came up when Delwin Vriend was fired from his job after his employer; a Christian Collage became aware of his homosexuality. The Alberta Individual Rights Protection Act did not included protection for people discriminated against based on sexual orientation but the Supreme court ruled that it must included such protection because of the rights in the Charter. Act 7 Outline the scope of the Canadian Human Rights Act. The aim of The Canadian Human Rights Act is to legally protect people from discrimination and harassment. The act makes discrimination based on race, national or ethnic origin, colour, religion, age,

sex, sexual orientation, marital status, family stats, disability and convictions where a pardon has been given. The act was passed by the federal government, so it applies to federal government subdivisions as well as businesses under federal jurisdiction. The CHRA does allow for some requirements to be made by employers, even if it would seem the requirements discriminate on a particular ground. These requirements are called "bona fide occupational requirements" as they are considered necessary for the job to be carried out safely.

Explain how pay equality is achieved. The CHRA specifically states in section 11 that pay must be equal for male and female employees, in the same workforce, provided they perform work of equal value. If a person feels they are being unequally paid in their workplace they can filed a complaint with the Canadian Human Rights Commission. To validate or dismiss a claim the CHRC compares jobs in the same industry on the basis of four standard criteria (skill, effort, responsibility, and working conditions). If the CHRC or a court finds the pay to be unequal the employees must be paid the difference by the employer. How was the CHRA amended to deal with discriminatory practices perpetuated on the Internet? The act was simply updated to include new forms of discrimination that have progressed with the rise of new types of technology. The amendment now makes discrimination spread by computer and in particular over the internet part of the act.* Discuss whether drug and alcohol testing should be allowed in the workplace. Justify your opinion. In most cases I think it would be inappropriate and unnecessary for drug tests to occur in the workplace. Employers should not be allowed to regulate what their employees do in their own time, outside of their workplace. Work performance has the possibility of suffering from drug or alcohol use, however this is not always the case. If an employee chooses to use drugs or alcohol (outside of the workplace) and is able to keep up their performance at work there is no reason for the employer to intervene with the choices of the employee. If an employee's performance at work is lacking or not up to par they should be informed of this and asked to step up their performance (drug testing should not be involved). Should the employee not be able to meet the standards of their employer there are many actions the employers can take. I do not think there is a legitimate reason for employers to drug test their employee's considering employers should not regulate the private lives of their employees and considering there are other options for employers to take if an employee's performance is lacking. There are however some jobs where I think public safety would potentially call for drug testing should there be an incident that hints on drug or alcohol use. For example if a pilot or cruise ship captain came to work exhibiting the symptoms of someone on drugs they should be forced not to continue their work until its clear whether or not their intoxicated.
*http://laws.justice.gc.ca/PDF/Statute/H/H-6.pdf

Act 8 Distinguish between direct discrimination and adverse-effect discrimination by providing an example of each. Direct discrimination is an obvious and outright method or conduct that goes against one or more of the types of discrimination. An example of this could be a police force that terminates an officer because it is revealed they are gay (discrimination based on sexual orientation).

Adverse-effect discrimination usually involves a standard or practice that seems to be in-different towards individuals and groups protected under an act dealing with discrimination; however the standard or practice is in fact discriminatory. An example of this type of discrimination happened to Tawney Meiorin. She was a fire-fighter who had been hired by the B.C government, but was unable to complete the aerobic standard test the government introduced. She was successful in arguing that this test was adverse-effect discrimination on women. Describe the competing interest between employer and employee when accommodation is concerned. Employers are in a tough position, they must create a safe and effective workplace but at the same time they must create a balance where accommodations can be made for certain employees. It is in the best interest of employers to hire the best possible employees, however when they set certain standards they may create adverse-effect discrimination. There are many employees who want to use their ability in certain jobs where an accommodation may be necessary for them, but this of course creates an extra cost for the employer. In general employers want the least costly and most efficient solutions where as employees want to be free from both types of discrimination even if it may cost the employer money or efficiency. Give examples of the types of questions that should be asked of an employer to determine if proper accommodation for employees with disabilities is being made. Based on Justice McLachlan's three step test many questions can be asked of an employer to determine if proper accommodation has been made for employees with disabilities. The questions should strive to figure out if: the standards are rationally connected to what will be performed on the job, whether the employer created the standards honestly believing that such standards were necessary to complete the work and if in fact such standards are necessary to complete the work related to the job. Examples of such questions: Can employees use other methods to accomplish the work the employer requests? Has the company made accommodations to prevent discrimination whether direct or indirect? If any standards are set by the companies are they necessary for the work related to the job? In the case where accommodations have been made, have they been made to the point of undue hardship? Is it financially possible for the company to make accommodations? Apply precedent to a case scenario you create involving a similar situation to that of Tawney Meiorin. Case Scenario: A Halton EMS test requires that all potential and current employees be able to lift a 75kg weight. The employer believes this is necessary because their employees often encounter patients who weigh around 150kg (two staff lift the patient into the ambulance). The EMS has recognized they are dealing with an increased number of obese patients as obesity rates are increasing in the population. Jayne Smith is a relativity fit person who has applied to work for EMS. She has passed all aptitude and fitness tests except the weight lifting test. She was unable to lift the 75kg weight in a similar way one would lift a patient into an ambulance. EMS has refused to hire her because she was unable to complete all of the required tests. Jayne has filed a complaint to the Canadian Human Rights Commission as she believes this strength test indirectly discriminates women as a group. The Halton EMS believes that this test is necessary as the majority of patients being transported to hospitals weight around 150kg and they believe this test benefits both worker and public safety.

Applying Precedent: To figure out whether this is a case of adverse-effect discrimination or a justified policy we must apply precedent from the case. In this situation it's possible to use the three step rule as introduced by Justice McLachlin. This will determine if the testing required by the Halton EMS is a bona fide occupation requirement. The test: Part one: Has the employer adopted the standard for a purpose rationally connected to the performance of the job? As Halton EMS has said this test has been developed because their staff must repeatedly lift patients onto a stretcher and into an ambulance. Clearly this standard is rationally connected to the work the staff will be performing. So far the standard has passed the first test. Part two: Has the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose? It is clear that Halton EMS is concerned with public safety and the health of their employees. They believe that this requirement is necessary as it will ensure the staff can lift a patient into an ambulance with the assistance of one other staff member. The employer believes it would be unsafe to send out a staff member who could not fulfill the strength requirements. Part three: Is the standard reasonably necessary to the accomplishment of that legitimate work-related activity? The Halton EMS has not proved that this standard is reasonably necessary for their employees. While the standards has been set in good faith and is related to the job it cannot be proven as necessary. The EMS will not always be dealing with obese people and if there was to be a patient weighing over 150kg how would the EMS address this issue? The EMS has also failed to show they have gone to the point of undue hardship to accommodate less physically fit employees. Thus the standard cannon pass part three of the test. Based on this the standard would have to be changed. As for accommodations the EMS could look into the use of lift assisting stretchers as they would make the work safer for employees and more open to those who are not able to lift 75kg. This would make the work more open to women as a group. Act 9 Identify four areas in which barriers to equality may be evident for older people. Provide examples of age discrimination that could occur in each area. The Ontario Human Rights Code allows for discrimination to be made based on age only in the case of employment, and only if the worker is older than 65 (or less than 18), because of this there are many areas where older workers can face situations of inequality. Older workers are unable to file a complaint should they be left out of a company's health and insurance benefits. For example, if a company offered full health insurance, but only offered dental insurance for those over 65 the worker would be unable to file a complaint. Workers over 65 may also experience differences in terms of pay. If a company employs two people undertaking similar jobs but one is over 65 they may pay the elderly worker substantially less and they would not be violation any of the Ontario Human Rights Code. Older workers may also be given less vacation time. If a company had a standard policy for vacation time they could exclude all workers 65 and older from the policy. Also older workers can be forced to retire. If someone reaches the age of 65 their employer can terminate them based on their age.

If the mandatory retirement age of 65 were to be extended or made more flexible, explain the positive or negative effects that this change would have on younger workers entering the workforce. In my opinion young workers would benefit both positively and negatively if the mandatory retirement age of 65 was modifiable based on the circumstances. The younger workers entering the workforce would be able to learn from people with many years of experience. These older workers could help teach them the tricks of the trade and prove to be a valuable resource when the younger workers are unsure of how something should be done. At the same time, if the mandatory retirement age of 65 was made more flexible employers would not be able to hire as many new young workers. Create three questions related to the racial profiling view point and discuss possible answers or solutions. 1. In your opinion what problems can be created by racial profiling? 2. Who can be affected by racial profiling? 3. How can we strive to eliminate racial profiling (what strategies could be implemented)? In my opinion racial profiling has the possibility of creating more issues than it solves. It may create an unnecessary distrust of a certain racial group by the public, or cause undue searches on people of certain ethnicities. It is almost always visible minorities that are subject to racial profiling, but entire communities can be affected by it because it can create an environment of distrust. To eliminate racial profiling I think we first must look at why it is being used and find other methods that treat all people equally. Act 10 Summarize the remedies available to the court should the validity of a law be successfully challenged. In the case were a law has been successfully challenged and the court declares it is unconstitutional the court may take any of the following actions: the court may declare the full law of no force or effect (basically fully removing the law), the court may require that a particular piece of the law is withdrawn from the law (so that it is no longer unconstitutional), and finally the court may "read in" or "read down" the legislation at issue. Why do courts use the process of "reading in" or "reading down" legislation? When it is determined that a law is too broad the courts can "reading down" legislation so that the intent and purpose of the law becomes more clear. Courts can also "read in" a term should it be necessary to comply with other laws or violate the charter. These two processes are useful because should the courts chose to read in or read down legislation they will not have to declare the entire legislation unconstitutional and strike it down. Under what circumstances can s. 24 (1) of the Charter be used? Section 24 (1) of the charter can be used when the court has found that a persons rights or freedoms guaranteed by the Charter were violated. This section allows the person to apply for a remedy. The court must then find a remedy that is rightful and just based on what rights were violated. Act 11 How was the freedom of religion violated in the Big M Drug Mart Case? The Lord's Day act required that no goods were sold on Sunday; however the Big M Drug Mart remained open and sold goods on Sunday contrary to the act. The court determined that the act infringed on the right to freedom of religion as it discriminated against non-Christians. In this case one religious point of

view was being put ahead of all others and the court found this unconstitutional. Big M was acquitted of any wrongdoing by the Supreme Court of Canada. What limits exist on freedom of expression? Explain by providing examples. There are quite a few factors that can limit the extent of our rights, the Charter it self states that our rights are only guaranteed to "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". The law often limits how far our rights extent. For example there are "hate laws" that prevent us from promoting hatred towards a visible group. There are also laws that prevent us from "expressing" obscene material (such as distributing pornography). Such laws are often put to tests created by the courts to determine if they are acceptable and do not violate rights as guaranteed by the Charter. Using the definition for "obscenity" in the Butler case, describe the restrictions that could be placed on literary or artistic works. How could an artist or writer justify his or her freedom of expression rights? In most cases literary or artistic works would not have restrictions placed on them as they have "artistic purpose". However based on the definition of "obscenity" as described in the Butler case limits could be imposed on the work if the material consists of explicit sex with violence, sex that his degrading or dehumanizing or if children are involved in such sexual scenes. For an artist to defend their freedom of expression rights they would have to show that the overall purpose of the work is artistic. The court would also subject the work to the "community standard of tolerance" test. What laws under the Charter and the Criminal Code can be used to limit the actions of protester who assemble in public? The Charter limits protesters from carrying out a violent protest, as it only gives us the right to "peaceful assembly" (Fundamental Freedoms: section 2 c). Also according to s. 63 of the Code, if three or more people come together with the purpose to cause others fear that the peace will be interrupted and violence may insure they can be arrested for unlawful assembly. Based on these sections of the law violent protests can be stopped and the rights of the protesters would not be violated. * Explain mobility rights under the Charter, and provide an example. Our Charter gives us the rights as Citizens to enter Canada, remain in and leave Canada. It also gives us the right to move to any province or territory. Based on these rights a Canadian citizen could not be stopped from moving to another province. They would also have the option of leaving Canada when they wanted or to stay in Canada for as long as they want. Many times people have fought extradition because of their right to remain in Canada, but this is not usually a successful argument.
*http://laws.justice.gc.ca/en/charter/1.html

Act 12 Assume the Canadian government authorized the police to install and monitor video surveillance cameras on street corners, in schools, at special events, and in public parks, as is the case in some cities in the United States and Europe. What objective do you think would be served by such legislation? How would this infringe on your rights? Legislation that would allow for video surveillance in normally private places would undoubtedly be controversial. Video surveillance could serve as an important tool in the fight against crime, as people would know their actions are being recorded. However the legality of such evidence could be

questioned as one could argue it goes against our right to "security of the person" as guaranteed by the Charter. Many people would consider video surveillance to be an invasion of privacy and unnecessary, they may also see it as a step towards a "police state". The courts would have to weigh the value of surveillance against the loss, to some extent, of our rights. Does your right to liberty mean that you cannot be given a jail sentence? Explain. While our Charter does provide us with the right to liberty, our rights only extent to the point where they can be used in a "free and democratic" society. The Charter also states that we have the right "to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". In our society we use jail time as a forum of justice when dealing with people who break the law, because of that if we are given a jail sentence our rights are not violated. Are you detained within the meaning of the Charter when you are stopped for a random police spot check? Explain Based on previous legal cases and the limits set on our rights, random police spot checks are not in violation of the rights set out in the Charter. In the Hufsky case it was argued that spot checks were a forum of arbitrary detention and in violation of our rights. However the court found that the violation was not unconstitutional because the purpose of the spot checks was public safety, therefore random spot checks are a reasonable limit to our section 9 rights. Should road Safety override individual rights? Support your opinion. In my opinion it is important that we always keep a balance between individual rights and the rights of the majority. When public safety is concerned I think it is important that we put a limit on some individual rights, while still ensuring we do not take away any fundamental rights of individuals. In the case of road safety I think limits should be put on how far individual rights extend. I believe random spot checks can help keep our roads safer and any problems they create are outweighed by their ability to get dangerous drunk drivers off the road. It's important to note that driving and the use of public roads is not a right, its a privilege. For the most part it is up to the police and law makers to keep our roads safe and if some of the provisions they create put a reasonable limit on our rights I think that should be permitted. Assume that drug evidence was obtained during an illegal search and seizure. Would the evidence automatically be excluded? Explain. The Charter grants us the right to be free from un reasonable search or seizure, in a case where an illegal search is made the evidence produced from the case is not automatically excluded. It is up to the courts to determine if the search was conducted in a manner that is not legitimate, they must also consider the situation and decide if allowing the evidence into court would bring justice into disrepute. Think about future Charter challenges that could arise with respect to equality rights and outline the issues involved. Our Charter grants us many rights that can be interpreted in many different ways and there will always be new challenges involving the Charter. The extent of these challenges depends how far Canadians are willing to stretch the definition of equality. There is no doubt that we will continue to have challenges based on age, race, sex, sexual preference, ect. but it is possible that we will see new cases involving discrimination on different grounds. As the textbook suggested it is possible the definition of equality could be expanded to include weight or size, this would have an effect on many businesses such as airlines, busses, trains, and even the entertainment industry. We must be carful that we balance our

rights with responsibilities and we do not let our Charter become something that will create more problems than it solves. Many new issues continue to come up as we make advances in technology and it is almost certain that some of these issues will be challenged or defended by the Charter. We now have unheard of knowledge in scientific fields, in particular genetic information. This information may lead to many battles; will we include "DNA" as a type of discrimination? Will insurance companies be able to look at our DNA and assess the risk of insuring a person? The courts and legislators will have to decide how to handle this new knowledge and decided if equality rights should be expanded to include it. Act 13 Topic: Civil liberties vs. National security Position: Be it resolved that national security at the cost of civil liberties is demonstrably justified in a post 9/11 world. In a post 9/11 world we must be ever careful of the threats that are all around us. Our government has been bestowed with the responsibility of protecting its citizens and at times this may call for limitations on our civil liberties. While such limitations are indeed unfortunate they are necessary for the safety of the country and its citizens. We face the threat of terrorism everyday, however there are many provisions we can take to limit the threat. This debate will present the argument that in this post 9/11 world it is justified that we must ensure national security, even at the cost of civil liberties. In preparation for a debate I have included facts, possible arguments, as well as rebuttals. Facts: Under Bill C-36 Offence to participate in any terrorist activity, use property for terrorist purposes, finance or facilitate a terrorist activity Individuals with information pertaining to a terrorist investigation required to appear before a judge and give testimony Peace officers can detain individuals to prevent terrorist activities Under C-11 Detain without charge foreign nationals Detain those with permanent resident status should they be considered a threat Foreign visitors can be detained without bail indefinitely Permanent residents can be held up to six months without review Removes possibility of appeal (for trials relating to terrorist activity) Evidence against the accused may be withheld providing it could threaten national security

Arguments and rebuttals:

o

Greenspan talks about how it is unfortunate that a person can be detained without charge based on secret information, he also says it is unfortunate that someone could lose their livelihood; however without such provisions it would not be possible for quick action to be taken to stop terrorist activities and protect the country. It is also important to note that if a terrorist activity were to be carried out (because such provisions and fast action were not possible) the lives of

thousands of citizens would be negatively affected. Clearly the security and protection provided warrants such provisions
o

Greenspan argues that it is foolish to simply trust the government to act wisely on the information. However the other option is apathy, something almost unthinkable in today's world. There is certain information that must be kept out of the public eye as it will ensure that such information cannot get into the wrong hands, further ensuring the safety of the nation. While it may seem ironic to take away civil liberties in the quest to protect freedom, in this case we have no choice. We must trust our elected officials to act in the interest of public safety, it is in our best interest to keep certain information behind closed doors and we must have confidence that this information is being used wisely. While it is true that sacrificing fundamental freedoms may come at a high cost, the risk of not limiting such rights in certain cases is much greater. There are some cases were we must put limits on the rights of individuals who have shown themselves to be a security risk as it is of the utmost importance to protect our security. Any injustice created by the limitation of the fundamental rights is well outweighed by the protection and security such limitations provide. It is most certainly unfortunate that we must sacrifice some of our fundamentally rights, however without certain sacrifices we cannot ensure that the citizens of this country are protected from threats far greater than the limitation of liberty. We must remember the purpose behind such provisions and entrust our government with the responsibility to uphold and protect our security. Counter terrorist measures are working and they are helping to stop terrorism, in August 2006 three men were arrested in Britain after their plan to hijack and crash multiple planes was uncovered by British officials. It is important that we continue to support anti-terrorism measures. It is undeniably possible that some people could be wrongfully detained and denied their rights, but should these provisions not be kept in place thousands of innocent people could lose their lives. Clearly the latter option is the responsible choice, we must accept that in this post 9/11 world small sacrifices must be made to constrain terrorism.

Sources and viewpoints: http://www.theatlantic.com/doc/200112/posner http://www.sans.org/reading_room/whitepapers/privacy/canadian_civil_liberties_vs_public_security_post_crisis_have_the_terrorists_won_10 50 www.natural-person.ca/pdf/Liberty_versus_Security.pdf http://www.carters.ca/pub/bulletin/charity/2002/chylb12.htm http://www.guardian.co.uk/world/2009/sep/07/terrorists-plot-atlantic-liquid-bombs

Act 14 Outline the historical barriers to equality rights for women. Throughout our history women have almost always been treated unequal to men and today, while the discrimination is much less evident it still exists. In the context of Canadian history women have fought many equality battles and some still continue. In the past the discrimination towards women was so outright that they were not even considered "persons". Today this is almost unthinkable, as the lack of "person" status barred women from voting, having political rights, and in essence their entire gender was owned by men. In 1929 the Privy Council finally granted women the same "person's" status as men. In more recent times the issue of pay equality has come up. World War Two forced many men away from their jobs to go and fight, because of these women started to take on a bigger role in the workforce. This has lead up to issues on the subject of pay equality; historically women have always

been paid less than men when taking on the same jobs. Our Charter and other human right codes have sought to make pay equality a reality as today discrimination based on sex is considered unconstitutional. However we continue to see cases dealing with pay inequalities. Summarize some of the historical injustices faced by immigrants to Canada. There have been many injustice issues in Canada's past especially when looking at the treatment of immigrants. Many different racial and ethnic groups have been bound by injustice and treatment that would be unthinkable by today's standards. At one time in Canadian history Japanese Canadians could not vote in elections, Japanese store owners could not employ white females and at the beginning of WWII the way Canada treated the Japanese became even worse. They were given the title "enemy aliens", their property was taken away, they were put in internment camps and almost all of their belongings were sold. Chinese immigrants also faced similar discrimination, they were banned from hiring white female employees and the Chinese's labourers who worked on the railroads were often paid significantly less than white workers. Chinese's immigrants were also forced to pay a "head tax" as a way of entering Canada and later an act was passed that aimed to prevent Chinese from immigrating to Canada. Ukrainian as well as Italian Canadians also faced internment during the respective World Wars and during WWII Canada attempted to restrict Jewish immigration. Many legal battles were fought by those affected by the injustice and today some apologies have been made. In particular the Japanese Canadians received an apology from the Canadian government as well as compensation for their treatment during WWII. Today some studies show immigrants still face injustice in Canada even with our Charter and the other means of protecting people from discrimination. What efforts can be taken to combat prejudice within your community? There is no doubt that prejudice is still a very alive aspect of life in Canada. In this context prejudice is creating a usually unfavorable opinion or feeling about someone before really getting to know them, or after only seeing them or learning of their race/ethnicity. I believe that prejudice will always exist to some extent in our world but there are ways to combat it however that it certainly not an easy task. One of the root causes of prejudice is a lack of understanding, in this case between racial and ethnic groups. Fighting prejudice first involves tackling the lack of understanding that is present in our society. Only by getting to know each other can we really eliminate prejudice. There are many "race relation" groups that have been created with the goal of creating a community of understanding. It is also important that people be aware of what discrimination is and how to avoid it, people can resist prejudice if they are made aware of their rights, especially in regards to discrimination. Summarize the current issues facing Aboriginal peoples in Canada. Canada has made some progress in dealing with Aboriginal issues. Our government has worked at resolving previous unfair and discriminatory treatment of Aboriginals, but there is still much work to be done. Today many issues still face Aboriginal Canadians, most of them social issues. Arguably the most pressing issue is that of poverty, many Aboriginals are below the poverty line and there is not enough proper housing for the Aboriginal people that need it. It is unfortunate to think that over 40% of Aboriginal children off-reserve are below the poverty line.* Also of concern is proper access to health care, education as well as land claims. Other issues facing the Aboriginal population include employment, self-government and rights to activities such as hunting and fishing.
*http://www.campaign2000.ca/BRIEFFinCmtAug1508.pdf

Describe the barriers to equality faced by people with disabilities. Like other minority groups disabled people face many issues with regards to equality. There have been many campaigns to improve equality for disabled people and they have resulted in some improvement,

however many businesses and other buildings remain inaccessible for those with mobility problems. People with disabilities often have trouble finding employment as their opportunities can be limited by certain work environments. Government services can also play a large role in equality for people with disabilities and when funding is lost for programs helping the disabled it can directly affect their lives. What did you think of the government's apology to aboriginal Canadians? It is very unfortunate that so many Aboriginal children went through such terrible experiences in the residential schools. They were removed from their homes and forced to leave behind their culture as well as their language. Never before has our government given any group a formal apology, this is definitely something new in Canadian politics. I think the apology is definitely a step in the right direction as it is very clear that the residential schools were a mistake that Canada must learn from and never allow to happen again. It is important that our government takes responsibility for what happened to the Aboriginals and the losses they suffered. It seems like many Aboriginals appreciated the apology, however many of them wanted to ensure that action would follow the apology. There is however a problem with the government offering an apology to the Aboriginals, that is many other minority groups in Canada have experienced similar degrading and unfair treatment, should the government now apologies to them? The government may now be expected to formally apologize for other discrimination cases in our history and if they dont it would seem they are ignoring other aspects of Canada's past. It seems that this apology could raise questions on what is expected of today's government in terms of taking responsibility for the actions of previous Canadian governments. Act 15

Aboriginal Land-claim Cases

In Canada there are still many issues between the government and the Aboriginal population. Canada continues to improve its treatment of Aboriginal Canadians but there is still a lot of progress left to be made. Land-claim issues continue to create controversy for many Aboriginals and the rest of Canada. There have been countless legal cases arising from land disputes and the problem is sure to continue. According to the Canadian government there are two main types of land claims: Comprehensive claims and Specific Claims. The Canadian government first created policies dealing with Aboriginal claims in 1973 and today it continues to use this method to resolve many Aboriginal issues. Comprehensive claims dealing specifically with uncompleted treaty-making and where issues involving Aboriginal land rights have not been addressed previously in treaties or by other means. When dealing with Comprehensive claims the government must negotiate new treaties with both the Aboriginal group and the province or territory involved. Specific claims involve previous issues between the Aboriginals and Canada based on historic treaties or other ways Canada oversaw Aboriginal issues (including funds or property). This type of claim is not always land related. Canada negotiates with the Aboriginals and if necessary the province or territory based on previously created treaties. Today there are still many disputes between Aboriginals and the different levels of government. Recently it was decided that a land dispute between the Yukon and the Little Salmon Carmack First Nation will be heard by the Supreme Court of Canada. The dispute has been going on for over five years, after the Yukon government granted 65 hectares of agricultural land to be leased to a possible farmer back in 2004. The case will be heard by the Supreme Court starting November 12, 2009.

Another land dispute between the government and First Nations is taking place in Manitoba. In this case the dispute is over the Kapyong Barracks, and whether the government should be allowed to sell the barracks to Canada Lands. The First Nations people feel that the government had the obligation to first talk with them before proceeding on the sale to Canada Lands. However the government is arguing that they have already given the First Nations an opportunity to make an offer on the land, but they say the First Nations failed to do so. The First Nations are hoping to use the barracks for housing, education, and to create other native run facilities. Land is undoubtedly of great importance for the First Nations people, it provides them with grounds to hunt on and a place where they can practice their culture. It is important that our government upholds the agreements it has made with the First Nations people. However it seems the Federal and Provincial governments are still treating the Aboriginals without respect and they are not upholding certain land rights. The courts will definitely have some difficult decisions ahead of them and its important that they ensure mistakes of the past are not remade.
Sources: http://www.cbc.ca/canada/north/story/2009/09/01/yukon-scoc-land.html http://www.winnipegfreepress.com/local/kapyong-battle-drags-on-58914892.html

Act 16 Charter Case: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R 295 Summary of Facts: On Sunday, May 30, 1982, City of Calgary police officers entered the Big M Drug Mart. The officers witnessed multiple sales taking place. Subsequently Big M Drug Mart was charged with the unlawful sale of goods on Sunday as such sales violated the Lords Day Act of 1906. Big M Drug Mart was acquitted at trial, and the appeal to the Court of Appeal was dismissed. Issue to be decided The issue at hand was whether or not the Lords Day Act violated the rights and freedoms as guaranteed in the Charter. Section 52 of the Constitution declares that no one can be convicted under an unconstitutional law. The Supreme Court had to decide if the Lords Day Act infringed on the right to freedom of conscience and religion, if the infringements were justified by s. 1 of the Charter and if the Act was enacted pursuant to the criminal law power (s. 91(27)) of the Constitution Act, 1867. Decision of the Supreme Court of Canada The appeal should be dismissed. Reason for the Decision The Supreme Court ruled that the Lords Day Act was unconstitutional, as it violated section 2 of the Charter. The court held that there was no secular purpose served by the Act and that its only true purpose was to create a religious-based requirement. The court went on to say Any law, purely religious in purpose, which denies non-Christians the right to work on Sunday denies them the right to practice their religion and infringes their religious freedom. Furthermore the court decided that whether or not a company could hold a religious belief is irrelevant, as the law violated the right to freedom of religion and is unjustifiable, such a law is invalid. State opinion of judgment and justify views.

Canada is very much a multicultural society that welcomes people of all religions. However Canadians value the concept of separation of Church and State, as the decision in this case clearly demonstrates. As a secular nation I think it is important that Canada does not allow or create Blue laws as they clearly put the values of one religion over all others. In my opinion the Supreme Court made the right decision by dismissing the appeal. This sends a clear message that laws created for a religious interest are in violation of the Charter and unconstitutional. The Impact of R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R 295 on Canadian Rights and Law On Sunday, May 30, 1982 City of Calgary police officers entered Big M Drug Mart. They witnessed the sales of multiple goods and subsequently charged the business with the unlawful sale of goods on Sunday; as such sales were prohibited by the Lords Day Act of 1906. The case against Big M Drug Mart soon found itself at the Supreme Court of Canada, where the legitimacy of the Lords Day Act was successfully challenged. The case against Big M Drug Mart was in no doubt a landmark case and one that has certainly set clear presidents for future Charter cases. The importance of the case cannot be underestimated; the case set a clear message that laws only pertaining to a religious purpose were unconstitutional, it established that whether or not a business could have a religious belief was irreverent to such a case, and finally it was the first case where an entire Act was struck down by the court. Overall this case significantly defined the right to religious freedom. The Lords Day Act of 1906 basically prohibited any work or other commercial activity on Sunday (or Lords Day). It was clear that the sales taking place at Big M Drug Mart were not included in the exemptions listed by the Act nor was this argued by the Respondent. The Respondent did however argue that prohibiting work on Sunday served no secular purpose, but rather forced a religious based requirement on all people and businesses. It was clear to both the respondent and the court that the intent of the Lords Day Act was to recognize Sunday as the day of rest as required by some Christian denominations. The Supreme Court of Canada agreed and further ruled that the right to freedom of religion extends to prohibit religious requirements. Significantly this decision will affect any future cases dealing with Blue Laws or those laws based on or created to suit a particular religion. It sends a clear message that no religion will take precedence over another in Canadian law. Furthermore this decision emphasizes that the laws in Canada must be secular in nature and not serving of a single religion. This landmark ruling also demonstrated the power of the Constitution Act, 1882. The Appellant argued that because the Big M Drug Mart was a company and not a natural person it could not have a religion and as such the Lords Day Act did not violate any of the Charter. However section 52 of the Constitution Act allows for any unconstitutional law to become of no force or effect. The court decided that whether a corporation can enjoy or exercise freedom of religion is therefore irrelevant as the question at hand was the character of the law, not the status of the Respondent. Therefore because the Lords Day Act clearly limited religious freedom it could be struck down using section 52 of the Constitution Act. This principle established that no law can violate any right guaranteed by the Charter that can be demonstrated in a free and democratic society. This is of immense importance as it prevents Canadian laws from becoming influenced by religious groups, in essence keeping the laws of Canada secular. The Canadian Charter of Rights and Freedoms had undeniably changed the way Canadian justice and the legal system operates. One notable change that came with the Charter was that the Courts could now substantially change the law should it be found unconstitutional. The case against Big M Drug Mart profoundly demonstrated the power of the Supreme Court when it struck down the Lords Day Act

in its entirety. Never before had a court ruling changed a law to the point where it became of no force or effect. This ruling made it evident to Canadians and to legislators that the Constitution is the supreme law of Canada. Additionally the ruling demonstrated that the courts would use all the power invested in them by the Constitution should it be necessary. The Supreme Court case R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R 295 has been instrumental in defining the right to religious freedom, substantial in demonstrating the power of the Constitution and critical in defining what is relevant in a Charter case . Clearly the Big M case has affected Canadian law as it will be instrumental in future Charter challenges.
Sources: http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=a1ARTA0000734 http://www.thecourt.ca/2009/08/26/freedom-of-conscience-our-untold-charter-guarantee/ http://csc.lexum.umontreal.ca/en/1985/1985rcs1-295/1985rcs1-295.html

Module 3
Act 1 What evidence do you see for Beccaria's or Bentham's views in the following quotation from the American Declaration of Independence of 1776? Cesare Beccaria viewed humans as driven by self-interest, yet ration in their actions. He argued people would come to conclude that it was in their best interest to limit some of their freedoms for their own protection and that the government should act in the best interest of the people. He further argued that when dealing with crime, the law should be an effective deterrent and punishment should always outweigh the gains found by engaging in criminal activity. Beccaria's views are evident in the quotation from the Declaration of Independence; firstly the Declaration states "That to secure these rights, Governments are created among Men, deriving their just powers from the consent of the governed", in other words the Government assumes its power from its citizens to protect and secure their rights. Furthermore the Declaration recognizes that people are driven to protect their "Safety and Happiness" largely agreeing with Beccaria, in that people are driven by self interest. Jeremy Bentham's views on government are also evident in the Declaration as he believed there must be limits established on the power of government, such limits are clearly set out by the Declaration when it states: "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government". Bentham also believed that law was a contract between the people as well as the government, this is evident in the Declaration as it states that the powers of the government are taken from those being governed and it sets out consequences should either side break the agreement. Examine the Canadian Charter of Rights and Freedoms. Identify evidence of classical theory in our Charter and explain your choices. Our Charter has defined its self as a strong legal tool in the protection of our rights and freedoms, and its implementation has profoundly shaped Canadian Law. There are quite a few examples of classical theory in our Charter, as defined by both Beccaria and Bentham works. Classical theory suggests that in the best interest of citizens that their rights be limited by the government to protect their security. This idea is evident in section 1 and 7 of the Charter, as they both put limits on the rights the Charter guarantees to protect the security of the majority. Specifically they limit the rights to what can be demonstrated in a free and democratic society, furthermore section seven limit Section 4 and 12 also demonstrate classical theory as they set limits on the power of the government. Section 4 ensures that the legislative assembly cannot continue for more than 5 years, and section 12 prevents people from being subject to cruel or unusual punishment. The Classical theory suggest that criminal behavior is the result of rational choice and that people will be deterred by punishment. What arguments would you use to counter this position? There are many theory's that aim to understand why criminal behavior has always been and continues to operate in our societies. While classical theory argues that criminal behavior comes from rational choice and people can be deterred by punishment, many other theories provide different reasons for criminal activity. Consensus theory argues that the criminals in our society do not agree with the majorities views on right and wrong, and because of this they choose to break the law, regardless of the consequences. Its also argued by rational choice and deterrence theorists that criminals seek the thrill and excitement brought on by their behavior, and because many of them are irrational they cannot be deterred by punishment. Other theories focus more on factors mostly beyond the control of the criminal, such as environmental factors, their upbringing and even how their brain functions. Emile

Durkheim believed that crime served a purpose in our societies, that is it challenged the current ideas as to what is right and wrong; while it also ensures that society would not become too "conforming". Prepare and an argument that the possession, sale and distribution of tobacco products should be part of criminal law. Smoking is an unfortunate reality in our society, and it is one that we must ban to ensure the health and safety of all Canadians. There are multiple reasons why smoking must become illegal in Canada and be covered under our criminal code. We are fortunate in that we already have many smoking regulations and rules in place to limit where smoking can occur, and now we must fully extend this ban to cover smoking in all forums and in all places. The reasons to ban smoking include: o 45000 Canadians die each year from smoking (Compared to 0 from marijuana, yet marijuana is illegal) Of the 45,000 deaths each year: 29,000 are among men 16,000 are among women 100 are among infants o Smoking cost the health care system millions of dollars o Smoking is considered worse (in terms of health effects) than illegal drugs such as marijuana o Smoking is not just harmful to those who choose to smoke, second hand smoke effects those around them o Although the sale of tobacco is limited to those 19 and older many youth still find a way to smoke, banning tobacco would largely eliminate this problem While it has been argued that banning tobacco products would result in a loss of jobs and less money (tax) collected by the government the positive effects on the health care system would be worth any negative implications! Banning smoking and other tobacco products would save thousands of lives, both smokers and non-smokers. Sources: Health Canada, notosmoke.com, National Clearinghouse on Tobacco and Health, Canadian Center for Substance Abuse, smoke-free.ca Act 2 Explain the two main elements required for the legal definition of a crime. Actus reus and mens rea are the two main elements required for anything to be legally considered a crime. In law it must be proven that the illegal act actually happened, this is referred to as actus reus, meaning "guilty act". The other element is mens rea (guilty mind), meaning that the accused must have also intended to engage in the criminal activity. What is the difference between specific and general intent? Provide an example of transferred intent. In legal terms general intent is shown when the accused meant to commit the crime (their actions were intentional). Specific intent goes beyond the definition of general intent; it is shown when the accused not only meant to commit the act but also intended to carry out an indictable offence. The idea of transferred intent is used when the accused meant to commit a crime against one person, but ended up injuring someone else. For example if the accused intended to hit a specific person with their car, but missed and injured another person this would be transferred intent.

Explain what is meant by recklessness and willful blindness in reference to mens rea. Recklessness in regards to mens rea is extreme carelessness or disregard for obvious danger. For recklessness to satisfy the definition of mens rea it must be proven that the dangers of the accused actions were apparent to them (it does not matter if they intended for any of the consequences of their actions to occur or not). For example if someone were to throw a large object out of a window, directly above a sidewalk and injure another person their actions could be considered reckless by the eyes of the law; even if they did not intend for the person to be injured. Willful blindness is somewhat similar to recklessness, but it requires that the accused to be aware that their actions may be criminal or cause a harmful outcome, but they choose to do nothing or not to ask questions that could confirm this idea. For example someone who drives a delivery tuck and suspects they are transporting drugs (for whatever reason) but does not attempt to find out if their feeling is correct could be considered willfully blind. Some defense lawyers argue that absolute and strict liability offence should be removed from the Criminal Code as they violate the right to be presumed innocent under the Charter of Rights and Freedoms. Write a brief counter-argument defending the inclusion of strict and absolute liability offences in the Criminal Code. Mens rea is almost always an element in determining if a conviction can be made, however this is not the case in both strict liability and absolute liability offences. There are many reasons why both absolute and strict liability offences are necessary and why it is necessary that the right to be presumed innocent be limited in some ways. For the most part strict liability offences deal with concerns of public safety and the importance's in these cases is not the frame of mind of the accused, but rather if the event actually occurred. In a strict liability case the accused is still presumed innocent in regards to whether the act occurred or not, so the right to be presumed innocent is not violated. The accused may also defend their actions by proving that their actions demonstrated due diligence. While the burden of proof does not usually reside with the accused, in strict liability cases it would be inefficient for the burden of proof (in regards to due diligence) to be on the Crown; especially because due diligence would only be used as a defense if the accused admitted to the offence. In cases of absolute liability the defendant's right to be presumed innocent has not been violated as it must still be proven that the event occurred. However the mental state of the defendant has been determined irrelevant in regards to the crime. In both cases there is very little limitation on the accused rights and because of this it would be unreasonable for these types of offences to be removed from the Criminal Code. Act 3 What is the difference between retributive and restorative justice? What advantages and disadvantages do you see for each type? Both retributive and restorative justice are present in the Canadian legal system, but they are different systems of justice that accomplish "justice" in very different ways. Retributive justice focuses more on punishing the guilty in a way that is proportionate to the crime they committed. In its ultimate forum retributive justice could be described as "an eye for an eye", but this is not always the case. In retributive justice systems the guilty person is often punished by the State(as the crime is considered to be committed "against the state") and for the most part the victim is left out of the process. Restorative justice has a completely different focus, that is it looks at who has been affected by the crime and how peace can be restored between the victim and the offender. To restore justice the victim and offender are often encourage to meet while in the presence of someone who is trained to mediate.

The goal of both systems is to create and effective and fair forum of creating justice and both have many advantages as well as disadvantages. Retributive justice ensures that the law will be applied equally and that the punishment will be proportionate to the crime, but for the most part it leaves out the true victim in the process and it is highly ineffective at restoring peace between the victim and the offender. Restorative justice has the highest victim satisfaction rates, it aims to restore a positive relationship between the victim and offender and it also requires the offender to take direct responsibility for their actions. However restorative justice cannot ensure that the same crimes will have the same consequences, as the needs of some victims may be different. The Canadian Charter of Rights and Freedoms says that the rights of an accused cannon be removed except in accordance with the principles of fundamental justice. How would you describe the principles of fundamental justice? The term "fundamental justice" as used in our Charter is rather ambiguous, as it may have a number of meanings depending on the case at hand. Since the introduction of the Charter the term has more specifically defined and developed by the courts. Fundamental justice encompasses the principle that the law must be carried out in a certain way that is fair to everyone involved. In this context the Charter is protecting the rights of the accused. To me fundamental justice is the law operating in a fair way, that ensures the accused will be made aware of their rights, but also allowed to exercise them. In many ways fundamental justice is very similar to "natural justice". The Greek philosopher Aristotle said that justice was receiving one's due. How would you argue that wrongfully accused Canadians such as Donald Marshall Jr., David Milgaard, and Guy Paul Morin received their due? Unfortunately our system of "justice" is not perfect, and at times there will be wrongful convictions. Donald Marshall Jr. was convicted of murder and spent over 11 years of his life in prison for a crime he did not commit; he was 17 at the time of the incident. Likewise David Milgaard spend 23 years of his life behind bars, and DNA evidence later proved he did not murder Gail Miller. In 1986 Guy Paul Morin was convicted of murder, but when DNA evidence was later reviewed he was exonerated. It would be hard to argue that any of Canada's wrongfully convicted have received their due, but many of them have been granted some form of compensation. All three wrongfully convicted men were awarded monetary compensation, Marshall Jr. received $200,000, Milgaard received $10 Million and Morin was awarded $1.2 Million. Of course the money they have been awarded can never replace the years of their lives that were spent behind bars, however their cases have lead to improvements in the Canadian justice system and hopefully their misfortunes will be used as a valuable lesson for future cases. In Defense of Self Defense Unfortunately for Shad King the criminal code is very specific on how one is justified while using force to remove a trespasser from their "dwelling-house" or "real property". King shot at, and injured a man who was trespassing at his stereo store in Edmonton but his actions were not considered to be legal under the self defense laws in Canada. The criminal code states that everyone is justified when they use force to "remove a trespasser there from, if he uses no more force than is necessary". Presumably the courts found that King used more force than what was necessary when he shot at the trespassers, however it is not apparent from the article if the burglars were armed or not. It would also be hard for King to argue that he feared for his life, as he arrived at the shop after the start of the break-in. Based on the differences between Canada's and Britain's laws dealing with self defense I do not think Mr. Martin would have been convicted if he had been tried under Canadian laws. The major difference is that Canada allows everyone to defend their property as long as they use no more force than what is necessary, this allows for the use of lethal force if necessary. In contrast British law draws the line on self

defense before the use of lethal force. Because Mr. Martin feared for his life and used force he found necessary to protect himself (and unlike King he was at the scene when the break-in occurred) I believe he would not have been convicted of any crime. Act 4 Outline the requirements for a reasonable search and seizure. There are many provisions in place that ensure searches and/or seizures must be reasonable in Canada; and it is in the best interest of the police to conduct searches and seizures in a reasonable manner or they face the possibility of the courts throwing out the evidence they collect. Most of the time police officers have to go before a judge to receive a search warrant prior to carrying out a search and possibly seizing evidence. The Supreme Court has created a test that defines a reasonable search and seizure. The search must be authorized by law, the law must be reasonable, and the way the search was conducted must be acceptable. Summarize the conditions under which a judge could issue a search warrant under s. 487 of the Criminal Code. Section 487 of the Criminal code allows a judge to issue a search warrant if certain conditions are met. The judge must be confident an offence has been committed and that the search will result in evidence being collected pertaining to the crime or that the search will bring up information on the suspects location. The judge can also issue a search warrant if there is reasonable grounds to believe that anything intended to be used in a crime will be found in the search. When can the police conduct a search without a warrant? Explain by providing examples. The law (s. 117.02 of the Criminal code) allows police to conduct a search without a warrant only if certain conditions are met. Police can conduct a search without a warrant if an offence involves a weapon or after they arrest a suspect and certain circumstances are present (listed in next question). For example should a suspect who just robbed a bank with the use of a gun drive to their house the police would not need a warrant to search the house for the suspect. Likewise if they arrest anyone and their actions suggest they have a weapon on their person the police may search them. A search may also be conducted without a warrant in cases of exigent circumstances. If a situation arises where police believe evidence may be removed or destroyed at any moment they can conduct a search. This also extends to cases where officers have reason to believe that if a search is not conducted on a certain location (such as a house or business) someone may be harmed or even die. An example of exigent circumstances may include a situation where someone has been drinking inside their home and threatening to hurt or kill members of their family; the police would realize that the family members were in danger and they would be able to enter and search the house without a warrant. Describe conditions that limit the common law right to search incidental to arrest. After arresting a suspect police may search that person, but there are certain limitations and conditions that must be met for the search to be lawful. The officers conducting the search must believe the search to be crucial in applying the law and the search must have a purpose (find weapons, items that may be used to escape). Furthermore the search cannot be used as a tool to pressure the suspect into providing a confession and the search must be carried out in a way that is not abusive. Distinguish between arrest and detention. The terms arrest and detention are actually quite different in legal terms. An arrest takes place when an officer has grounds to believe a person: is committing, has committed or will commit an indictable

offence. It can also take place when an officer has reason to believe that there is an arrest warrant out for the person they are dealing with. In contrast a detention is not the result of an indictable action. It can occur when someone is physically restrained, or when an officer gives a demand that a person stay in a certain location. A person can also be detained when they are made to believe that they may not leave, even if no demand has been made. Describe your Charter rights on arrest or detention. Provide examples of how these rights could be violated. Section 9 and 10 of the Charter list our rights should we be arrested or detained. Section 9 states that "everyone has the right not to be arbitrarily detained or imprisoned." Basically this means that we cannot be detained or arrested without such action being backed by the law. Section 10 provides three more rights should we be arrested or detained. Firstly it states that anyone who is arrested must be informed of the reasons in a timely manner. Secondly it demands that the arrested or detained be allowed to seek legal help and that they be made aware of that right. Finally section 10 ensures that the arrest or detention is valid by subjecting it to habeas corpus (the arrested or detained has the right to be seen by a judge so that it can be determined if the action against them is lawful). There are many examples of how these rights could be violated, if a person was peacefully protesting (and there were no particular laws against this) and an officer arrested them their rights under section 9 would have been violated. Likewise if someone was legally arrested but than they were not informed of the reasons or informed that they could seek legal help, we would consider their rights under section 10, violated. Act 5 Explain the right to remain silent. What Charter rights affirm this principle? The right to remain silent can be interpreted in many ways and it is different in most countries. In Canada the right to remain silent is not directly spelled out by the charter, but section 7 has been interpreted to protect the accused from being forced into answering questions or making a statement to authorities. In other words the accused may choose not to speak to an interrogator and they cannot be forced to do so because this right is protected by the Charter. What factors would a defence lawyer consider in challenging the legality of a confession? The rights of the accused are highly protected by the Charter (specifically s. 7, 10, and 24) and other parts of Canadian law, so there are many factors a defence lawyer can question when dealing with a confession. Firstly the defence lawyer should ensure that the confession was made voluntarily and that their client understood that it could be used as evidence against them. Interrogators cannot use tricks, threats or promises to obtain a confession, and they cannot use harsh tactics such as keeping the accused awake for long periods of time. The defence can also consider the atmosphere of the interrogation, if it was made in unacceptable conditions (such as poor lighting, extreme temperatures, ect) the confession may not be used as evidence in court. Should police officers be allowed to use trickery to obtain a confession? Support your opinion. A confession can be a very helpful tool in prosecuting the accused, and in my opinion a confession should be extracted very carefully. In many cases I think it would be beneficial for all of society if police officers were allowed to use trickery to obtain a confession, especially if there is overwhelming evidence to support that the accused is guilty. I find it unfortunate that someone can clearly commit a crime and admit to it, but because of the way their confession was obtained it can never be used as evidence against them. However there have also been cases were police have abused their powers and obtained

false confessions from innocent people, using harsh tactics and even trickery. While I believe that trickery could be a helpful tool for police and interrogators there are so many ways this power could be abused - an innocent person could be tricked into believing that confessing to a crime they never committed would be more beneficial to them than defending their innocents - the interrogator(s) could create a misunderstanding - or a person could even be tricked into thinking they committed the crime*. Unfortunately I think there is too high a possibility of trickery being inappropriately used, even if it would be beneficial in some cases, for that reason, and those listed above I do not think police should be allowed to use it in obtaining a confession.
*This has happened both in Canada and the United States, mostly with minors. http://insession.blogs.cnn.com/2009/01/07/fixing-false-confessions/ http://www.cbc.ca/canada/story/2003/01/27/interrogation030127.html

Should the onus be on the accused to prove why he or she should not remain in custody in all cases? Explain. Those who are accused of any crime in Canada are afforded the right to be presumed innocent until proven otherwise in almost every situation (Charter s. 11). For that reason and many other I do not believe that the onus should be on the accused to prove why they should not have to remain in custody in all cases. If we were to make everyone who was accused of a crime prove that they should not remain in custody it would cause a major overflow in our jail systems and it would cost tax payers even more money, as its not cheap to keep people in custody. Presumably this would significantly slow down the courts as they would now have to deal with everyone accused of any crime (to here why they should not be kept in custody). Furthermore I do not think this would be a justified limitation on the accused right to be presumed innocent, when the crime is non-violent or minor in nature. However I can also understand why some people would want this to be the case in Canada, as there is always a concern that if someone is released from custody they may not return for trial or they may continue to commit other crimes. In my opinion those accused of violent crimes where there is significant evidence to suggest they are truly guilty should not be released from custody until proven otherwise, as they pose a danger to society; however this cannot be applied to all cases because of the practical and legal issues listed above. Explain the purpose of preliminary inquiry. The preliminary inquiry serves a purpose for both the Crown and the defence. For the Crown it is an opportunity to determine the strength of their case and to find out if a Judge will hear the case or if more evidence will be necessary. On the other hand the defence can use the preliminary inquiry to question Crown witnesses and examine the evidence that the Crown will present should the case go to court. Act 6 Explain the significance of the burden of proof in a criminal trial. The burden of proof is a significant concept in Canadian law as it sets out the roles of both the defence and the Crown in Canadian criminal trials. In criminal trials the Crown prosecutor(s) must prove their case against the defendant beyond reasonable doubt -this includes both moral and honest doubt as to the guilt of the accused. The defence on the other hand does not have to prove that their client is innocent beyond reasonable doubt, as this would go against the clients right to be "presumed innocent until proven guilty" (Charter s. 11 (d)). Rather the defence is responsible for defending their client against the evidence the Crown has put forward. If the trial involves a judge and jurors than, before coming to a verdict or deliberating on the case the jurors must be instructed on the concept of "burden

of proof". Also of significance is the fact that if the Crown cannot prove their case beyond reasonable doubt the accused must be acquitted. In your own words, explain the significance of the presumption of innocence in Canada's criminal justice system. The Canadian Charter of Rights and Freedoms specifically states in section 11 (d) that everyone has the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". This right is of great significance in our legal system because it defines how anyone accused of any crime must be treated. For example anyone who is arrested is still considered innocent until proven otherwise, and as such they also have the right to be seen by a judge so that it can be determined if the reasons for their arrest are valid. Furthermore the accused must be released from custody even before their trail, unless just cause can be found for keeping them in custody. This right also extends to our laws, for example the Oakes cases set a president that the "reverse onus provision" is a violation of the Charter, specifically the provision found in the old Narcotics Control Act. This is because the provision required the accused to prove his innocence rather than requiring the Crown to prove that Oakes had drugs for the purpose of trafficking. On what value is disclose to the defence in a criminal trial? A disclosure includes the Crown providing the defence with all information and evidence pertaining to the case against the defendant. It is of great value to the accused and the defence team because it allows them to fully answer the questions posed by the Crown and wholly advocate the innocence of the accused. If information is left out of the disclosure it could damage the integrity of the trial and put the court in jeopardy of making a wrongful conviction. What role does the judge play in the criminal justice system, and what constrains are placed on his or her duties? The judge plays a very important role of in the criminal justice system, as he or she has the task of administering the law to the facts presented to the case. Furthermore when a case does not involve a jury the judge must look at the reliability of the evidence and also its admissibility (if it should be allowed into the case - the judge may have to refer to the Charter and find out how the evidence was obtained). As for constrains the judge is required to remain impartial during the case, meaning that the judge must handle the case without applying his or her own bias. Distinguish between the role of a Crown prosecutor and that of a defence lawyer. The roles of the Crown prosecutor and defence lawyer are very different, yet they all work in our criminal justice system. The Crown prosecutor has the responsibility of presenting evidence to the court (judge and jury or judge only) that is applicable to the case and presenting their argument as to why the defendant should be found guilty. The Crown must also provide (disclose) all of the evidence pertaining to the case to the defence team. Using the provided evidence and other tools (such as statements from the accused) the defence must prepare to fight the charge(s) against their client using all legal means possible. Act 7 Three questions to clarify the issue: 1. Now that we have the technology to use DNA evidence to further ensure guilt or innocence, is this technology being applied to all previous cases where DNA is available?

2. How can we better insure objectivity on the part of those involved with legal proceedings, to ensure that "serious errors in judgment" are avoided? 3. In your opinion is monetary compensation enough for those like Guy Paul Morin who have been wrongfully convicted, or should more be done to ensure they can move on and live normal lives? Act 8 What guidelines has the court established to determine whether the defence of entrapment applies? After the case of R. v. Mack, [1988] 2 S.C.R. 903 guidelines were created to deal with the defence of entrapment and how it can be applied in future legal cases. Courts must now question if the police (or other authorities) simply arranged an opportunity for a person to commit a crime or if the authorities persuaded the individual into committing the offence. The latter would be considered a defence for entrapment. The courts must also find out if other methods of encouragement were used by the police and also if the accused was addicted to drugs or mentally impaired when the situation occurred, this would all allow for the defence of entrapment to be used. However the case must also be very clear for the defence to be used and it must be shown that the accused was "set-up" into committing an offence they otherwise would not have done. Other circumstances can also be taken to account, for example, if police exploited the normal human attributes of the accused the defence of entrapment may be allowed Under what circumstances could a person caught selling drugs to an undercover police officer not use the defence of entrapment? There are many circumstances where the defence of entrapment could not be used to defend the accused. For example if someone offered to sell drugs to an undercover officer, in a area often populated by drug dealers entrapment would not be a viable defence. This was the situation in the case of R. v. Barnes, [1991] 1 S.C.R 449. In this situation entrapment as a defence is not acceptable because the defendant was not enticed into selling the drugs or "set-up" but rather the defendant offered the drugs to the officer. If the officer does not persuade the individual or use other forums of encouragement, or exploit their basic human attributes the defence of entrapment cannot be used. Under what circumstances can the defence of necessity be used? The defence of necessity is basically an argument that it was necessary for the defendant to commit the offence. Of course the court will only accept this defence in rare circumstances such as those where immediate danger is present and it is urgent that the offence be committed to avoid the danger. This was the case of R. v. Perka et al. 91984), 14 C.C.C. (3d) 385 (S.C.C.). Drug smugglers faced dangerous water conditions and had to land their boat on Canadian territory to avoid the danger they faced by staying at sea. This defence was further accepted in the case against Dr. Morgentaler. Part of his argument was that while the laws made abortion illegal he felt obligated to perform them for women. In most situations the circumstances leading to the defendants actions must be considered, and specifically it must be determined if the circumstances would lead normal human instincts to compel someone into breaking the law (such as an emergency). Assume the given case was appealed to the Supreme Court. Do you think the acquittal would have been upheld? Explain. In this situation a 17 year old teenager and her father had an argument that escalated to the point where the father used force on his daughter (presumably he felt the force would "discipline and correct" her, as the first court stated). If we look at the guidelines set out by the Supreme Court in the Canadian Foundation for Children case we can see that the majority of them do not apply in this situation,

however should the fathers actions break just one of the guidelines his actions would not be justified as acceptable corporal punishment and he would not be able to use it as a defence. In this case I believe two of the guidelines set out by the court apply. The first is rather obvious, the guidelines state that corporal punishment cannot be used on teenagers, and the young female was 17 at the time, putting her in the category of "teenager". Based on that alone I do not think the acquittal would have been upheld as the violation is so clear. However I believe his actions also violated a second provision, being that corporal punishment should not be degrading. In my opinion kicking someone as a punishment is highly degrading as it shows them no dignity and puts them at the same level as an inanimate object. Clearly based on the violation of two guidelines set out by the court the defence of corporal punishment would not be entertained and the acquittal would not have been upheld Act 9 Create a chart in which you summarize, in your own words, the objectives of sentencing.

Punishment

Sentencing should discourage the offender from re-offending and it should produce satisfaction for those affected by the offenders crime

Objectives of Sentencing

Other

Sentencing should discourage all members of society from comitting crimes and when necessary it should seperate the offender from society.

Rehabiliation Rehibilliation should also be an important objective of sentencing when necessary to address any issues the offender may be facing. Futhermore sentencing should create a feeling of responsibility in the offender for the offence(s) they comitted.

Distinguish between denunciation and deterrence. Denunciation and deterrence are both important concepts in sentencing a criminal and in some cases they can be used together to develop an appropriate sentence. When using denunciation to determine a sentence for the offender three major factors are examined: society's feelings towards the committed crime, the offenders nature, and if applicable any previous criminal conduct. On the other hand the concept of deterrence is used in creating a sentence for two main purposes; firstly to prevent the offender from becoming a re-offender and secondly to send a message to other members of society that

such crimes will be taken very seriously. Basically the main purpose of deterrence is prevention where as the purpose of denunciation is to ensure that all other considerable factors are accounted for in the sentencing of the offender. Differentiate between specific deterrence and general deterrence and provide an example of each. Both general and specific deterrence strive to implement sentences that will stop further crimes from occurring, however they are both slightly different concepts. Specific deterrence is used in sentencing to prevent the offender from reoffending by sending them a clear message that their actions are not appropriate. Specific deterrence may be used in situations where the offender is already a re-offender. In contrast general deterrence looks to prevent other members of society from committing the same crime as the offender by using them as an example. This type of deterrence might be used in creating a sentence for someone who committed a crime that is growing in popularity in the area. Identify the advantages and disadvantages of rehabilitation as an objective of sentencing. The purpose of rehabilitation is to help the offender face any issues they have, move on from their criminal past and reintegrate them back into society. Rehabilitation can help offenders to deal with substance abuse problem and may decrease their likely hood of re-offending, thus benefiting all of society. However rehabilitation is more expensive and many people would argue that it is not the role of judges to treat the offender, but rather sentence them based on the concepts of denunciation and deterrence. Act 10 Explain the significance of an indeterminate sentence. The violent crime rate in Canada has significantly increased since 1962; however recent trends show a steady but slow decline. Criminals who choose to make a life out of crime can be labeled as "dangerous offenders and given an indeterminate sentence. This is a very significant for the offender and for the people the offender affected because this sentence carries no set maximum length. This gives the court the power to sentence someone for longer than a normal maximum sentences based on their previous criminal activity. Seven years after a dangerous offender is sentenced and taken into custody they may be considered for parole, however if they are not granted parole their case for parole must be reassessed every two years until they are granted parole. Distinguish between an absolute and conditional discharge. Both absolute and conditional discharges require that the offender be found guilty (or pleaded guilty) and that the offence they committed does not involve a minimum sentence (or one that is 14 years or life). When either type of discharge is granted to an offender a conviction is not recorded. If an offender is given an absolute discharge they will not have a criminal record and they will be considered not convicted. Unlike an absolute discharge a conditional discharge obligates the offender to follow certain conditions for an allotted amount of time. If the offender chooses not to follow the rules of their probation order their conditional discharge can be recalled and they may be given a new sentence. Explain the terms and conditions that may be attached to a probation order. A probation order is often accompanied by many provisions as selected by a judge. The judge can require that the offender conduct him or herself in a peaceful manner, come to court when requested and that the offender update the court should they change their name or address. Furthermore the offender may be required to update a probation officer, stay in a certain area, avoid using alcohol or drugs and at times they may also be required to complete up to 240 community service hours (within 18 months).

Outline the requirements that must be met before a conditional sentence can be imposed. If an offender is seeking a conditional sentence their circumstances must meet four main conditions. If a mandatory minimum sentence is given for the offenders crime or if the term of imprisonment given is more than two years a conditional sentence cannot be considered. The court must believe that giving the offender a conditional sentence would fulfill the objectives and standards of sentencing; and they must be sure the offender does not pose a threat to the community. These standards were made clear by the Supreme Court in the landmark case of R. v. Proulx, [2000] 1 S.C.R. 61. Explain the significance of a victim impact statement. After 1991 and the addition of s. 772 (1) to the criminal code, victims of criminal offences are now entitled to produce a victims impact statement to be head by the court or otherwise present it in an appropriate manner. The statement often describes the damage the victim suffered and helps to provide closure for the victim. It is particularly significant because if a victim chooses to prepare a statement the judge must consider it before sentencing the offender. The offender, defence lawyer and the Crown prosecutor must all be provided a copy of the statement the victim gives. Act 12 R. v. Chris Crusher To obtain a conviction in this case I would argue three main points, firstly that Chris Intended to use the pool ball and sock as a weapon, secondly bringing this improvised weapon to school was unnecessary and finally that Chris attempted to conceal the weapon. There is no question that Chris had a pool ball inside a sock while at school during September 18, 2000. There is also significant evidence to suggest that Chris planned to use this tool as an improvised weapon dangerous to the public peace, contrary to section 88 (1) of the criminal code. In Chriss testimony he acknowledges that he planned to use the pool ball and sock just in case *he+ had to defend *himself+ against Jackie Thug who allegedly wanted to fight him. Clearly Chris planned or was prepared to use the pool ball in a sock as an improvised weapon, endangering the public peace. In Chriss testimony he states that he heard Jackie had a gang and Chris also believed that the principal of the school would not be able to help him because Jackie would simply fight him after school if he were to go to the principal. Chris also acknowledged that he and Jackie had been in fights before and that Jackie may have started a gang. While Chriss principal may not have been able to help him in this case he had many other options besides bring a weapon to school. Chris could have talked to his parents, informed the police or informed another adult he trusted to resolve the issue between him and Jackie. Going to the police would have been the appropriate option in this case as Chris was aware that Jackie may have been carrying a weapon as this is evident in Chriss and Kims testimony. In this case it is clear that Chris was not in immediate danger, and he choose to go to school that day, thus the defence of necessity would not be valid. (The above paragraph should satisfy the requirements of both actus reus and mens rea for the first charge) From the statements given by all parties it is also evident that Chris attempted to conceal the weapon contrary to section 90 (1) of the Criminal Code. Constable Gerry Goodcop stated that he believed Chris was trying to conceal something from him and the other officer because of the Chris was acting, and when the officer approached Chris and asked him about the object in his pocket Constable Gerry Goodcops suspicions were confirmed. Chris does not deny that he try to conceal the weapon in his statement in fact he says I tried to hide it. He also goes on to say that he should have worn black

or beige something that blends in and that his parents never would have allowed him to go to school if they had known he was carrying the cue ball. (This should satisfy both actus rea and mens rea for the second charge.) Act 13 To obtain a conviction of murder in this case I would demonstrate how Jack Jones violated section 18(1)(a) of the Crimes Act and I would show the court how Jacks actions fit under the definition of murder. Following that, I would prove that Jack did not act in self defence or under provocation to ensure he would be convicted of murder and not a lesser charge. The first matter that must be proven is the death of the deceased, in this case it is listed under the facts the Arthur Giant died from head injuries sustained from falling 500 meters. And this fact is backed up by Inspector Albert Morses statement. So the first matter is taken care of. Secondly it must be shown that an unlawful act of the accused caused that death. As Jack states in his testimony he went inside, got an axe and proceeded to chop down the beanstalk, causing Mr. Giant to fall to his death. This is also backed up by his mothers testimony, when she states: At the last minute, Jack managed to get though the stalk and it toppled to the ground causing the man to fall onto his head in our field. Forensic evidence also linked the sap on the axe to the beanstalk. Thirdly I would show that Jack not only acted with reckless indifference to human life, but also with the intention to kill Mr. Giant. As Jack stated in his testimony, he chopped down the bean stalk and it feel into the field and the giant fell with it, obviously Jack had no concern for the life of Mr. Giant and it is reasonable to assume that he was aware that a fall of 500m would kill Mr. Giant. Also from the statement of Mrs Nora Jones, Jacks intentions become clearer. When Mrs. Jones asked Jack where he had been she remembered his response as: I must get the axe and chop down the beanstalk and kill the giant. Clearly Jack was aware of the implication of chopping down the beanstalk, and his intentions were to kill Mr. Giant. Should self defence be brought up I would argue that Jack actions do not fit the definition of Self Defence. According to common law it is the right of a person to defend him or herself against an attack; Jack however was never attacked by Mr. Giant, as recognized by all statements. In this case it would not be easy to prove beyond reasonable doubt that Jack did not act under provocation, however I would focus on the idea that his actions were not reasonable under the circumstances and that he never lost self control. To prove that Jack also violated section 112 of the Crimes Act I would show how Jacks actions fulfilled all elements of the crime. The first being that Jack broke and entered the dwelling-house of Mr. and Mrs. Giant. In her statement, Mrs. Giant testifies that Jack entered thought the cat-flap of the backdoor. He was then told to get out by Mrs. Giant. Obviously Jack was not welcome in the house. Secondly it is clear from the facts and statements that Jack wrongfully took and carried away a goose and golden egg from the home of Mr. Giant, with the intent to keep the egg and goose. In his own testimony Jack made the following stamen: I thought that if me and my Mum had the goose we would not be poor any more, so when the man went to sleep, I grabbed the goose and the egg and I nicked out through the little door again. Jack had no intention of returning Mr. Giants belongings and in fact planned to profit from sealing them. Mrs. Jones also remembers Jack as saying Its okay Mum, were rich now, the giant cant get us, everything will be alright. Furthermore, when the Inspector arrived he found jack holding a goose with an egg which was apparently made of gold. Using the above evidence Im confident Jack would be convicted on both charges.

Module 4
Act 1 Do you agree that bargaining with an employer for wages is psychologically different from negotiating the price of a new computer or car? Explain In my opinion there is quite a big difference between negotiating the price of an item and bargaining with an employer for a certain wage. When negotiating the price of an item there are fewer considerations that have to be taken into account and the amount you pay is not taken personally. However when you are bargaining for a wage many considerations have to be taken into account (such as your skills, experience, the current pay for people in the position you are applying for, ect). Also the person bargaining for the wage must be willing to accept that wage (which can be taken personally) for a long period of time, where as when you buy an item it is a one time price. Assume that you are negotiating an individual employment contract with a potential employer. Besides wages, what would you try to include in your compensation package? While compensations packages can vary greatly between different job types I would try to bargain for most of the standard items included in a compensation package for a worker with my experience and skill. If I was looking at a full time job I would try and include health insurance as well as time off in my package. If my job involved retail sales I would look into securing a discount for myself on the items I would be selling. I would also ensure that my package would include compensation for any expenses I would have to pay on the job. Because of the current economy I may also look to secure some extra pay if the company had to lay me off. Although many workers in the fast-food restaurant where Sarah Inglis was employed were interested in joining a union, others were not. What problems would union organizers face in trying to organize a union in the fast-food industry? I think one of the main problems in organizing a union in a fast-food industry would be the large number of short term employees and those who would rather bargain with the employer on an individual level. Also the fast-food company owners would likely be against the idea of creating a union, and they would likely encourage employees to vote against the idea of creating a union. It is also possible that some workers would not care or know how a union could help them. Act 2 The Trade Unions Act 1872 made it legal for workers to join a union. Why was it still so difficult for workers to unionize? Although this Act made it legal for workers to join a union it was still very difficult for them to do so because very defined conditions had to be met and they could still be fired, or even jailed for organizing a union (under the charge of conspiracy). Describe the impact of the Winnipeg General Strike on the labour movement in Canada. The Winnipeg General Strike was one of the biggest labour strikes in the history of Canada and was taken very seriously by the Government of Canada (who eventually sent the military to restore order). After the strike two changes took place, firstly the union the workers were fighting to create was recognized and secondly an eight hour work day was agreed upon. More importantly, some of the workers who played a key part in the strike organization went on to become politicians working at all levels of government to fight for changes to the labour law of Canada.

What elements of the US Wagner Act, 1935 were later adapted and enacted in the Canadian federal legislation Industrial Relations and Disputes Investigation Act? The Wagner Act drastically changed the rights of employees and how unions would be dealt with by US law. After World War II Canada adapted some parts of the Wagner Act into Canadian Law. In particular passage PC 1003 made it completely legal for Canadians to organize and create unions (Canadians could no longer be charged for attempting to start a union). Also employers were now legally obligated to negotiate with the union representatives. Furthermore, in 1948 the Industrial Relations and Disputes Investigation Act added more elements from the Wagner Act. These key elements included the creation of the Canada Labour Relations Board, a secret-ballot system, and a code of fair labour practices. Why is a provinces employment standard act one of the most significant pieces of its employment legislation? A province's ESA is so important and significant to its employment legislation because it sets out the rights as well as responsibilities of both workers and employers. Employment standard acts also include provisions for factors such as: minimum wage + benefits, termination, severance, hours, overtime, sick leave, bereavement leave, pregnancy leave, emergency leave, holidays and vacation time. ESA's have a drastic effect on workers as well as employers. Radio Shack: A. In Canada workers have significant rights when it comes to forming a union. Significantly Canadian workers can organize and create unions, completely legally. If a union is successfully created it must be recognized and negotiated with by the employer. It's also important to note that employers are forbidden by law from interfering with the creation of a union. However this question is not about the legality of employers discouraging the creation of unions, but rather our opinions on this practice. It is my opinion that employers must also have rights to protect their business and to express their concerns regarding unionization. I believe that every employer should be entitled to discourage unionization, but to an extent. Employers should be allowed to educate employees on the disadvantages of forming and creating a union and also be allowed to stop employees from using company time to work on union activities. B. Although I believe employers should be entitled to discourage unionization (to an extent as I stated) I believe Radio Shack did so in an unfair way, and in a way that I would not support. Radio shack also fired two employees for participating in union organization. If the organization was done on company time, and both workers were made aware that such activities would not be tolerated than I think Radio Shack was justified in their actions. At the same time Radio Shack ensured that its employees could not participate in union activities during work hours, they allowed anti-union activities. To ensure the integrity of the company they should not have allowed either activities to occur or allowed both. I also believe many of the other actions Radio Shack took were not justified beyond what an employer should be allowed to do when discouraging the organization of unions. C. If I was a member of the Labour Relations Board hearing this case I would likely grant the union to take another vote by secret ballot. As I said before I believe Radio Shack went too far in discouraging the creation of the union and while I might not agree with all of the Labour Relations Act Radio Shack clearly violated it.

Act 3 What outside influences could (a) strengthen and (b) weaken the bargaining power of a union negotiating tem attempting to arrive at a collective agreement. The bargaining power of a union can be affected both positively and negatively by outside factors. The state of the economy (both global, national and local) can have a strong influence on the union when it is negotiating for its members. This influence can be positive if the economy is strong or negative if the current economy or economic forecast is not looking good. Other factors that can either strengthen or weaken the bargaining power include: the demand for workers (strong demand = strengthen), and government policies (could be in-favor of union or employer). Another important factor that can have an effect on the strength of union bargaining power is the implementation and advancement of new technologies. Of course this can have either effect on the power of the union, as some technology may eliminate the need for workers, or it could create a new sector for the company requiring more skilled employees. Who controls and regulates the collective bargaining process? The collective bargaining process is regulated by our legal framework; in particular the labour relations board is the organization that oversees the bargaining process. They also have the duty to ensure that the rules related to unions and their organizations are followed by the employer. Why is it important that both sides appear to have won in negotiating a successful agreement? In any successful agreement both sides should leave the negotiations feeling that their needs have been met and they should feel as if they had "won". This is incredibly important for the union as it represents many workers who, in the end, have the decisions to remove the union if they feel as if it's not meeting their needs. For the union there is a great need to please all of those who it represents, and if the employees feel as if they have "won" there will be a better relationship between the employer and the employees. For the employer it is important that their needs be met and that the agreement is economically feasible. This is not only important to the employer, but also its shareholders. It's important that the agreement reflects what's possible and fair for the company to provide for the workers to ensure the company can survive. Act 4 Outline some of the factors common to most collective agreements. Collective agreements between the employer and the union are often very complex, but most include agreements on the following factors: o Employee and Employer rights and responsibilities - obviously this factor sets out the rights and responsibilities for both the employees and the employer. It may include rights that are not included in the Employment Standards Act. This section may also include an acknowledgement of the right of management to manage the company. o Grievance and arbitration procedures - this area of the agreement will spell out how disputes or complaints will be filed, and how the issue between the employee and employer will be handled. o Working Hours - this section may set minimum and maximum working hours for employees. o Compensation - this section will spell out the pay of employees and when raises will be made. Most collective agreements will also define the relationship that should be held between the union and the employer.

Employee Procedure Chart: Step: 1 2 Harold Banjac (Manager) Consult personal contract and employment legislation Attempt to individually resolve dispute with employer and seek reinstatement If dispute is not resolved sue employer Aiden Lowell (Clerk) Consult personal contract and employment legislation Attempt to individually resolve dispute with employer and seek reinstatement Kenneth Ghuri (CAW) Examine the collect agreement contract Seek union representation

If unable to resolve the issue file The union will fight on behalf a claim under the basic of the employee and seek employment standards their reinstatement legislation

Why is the increasing use of temporary, part-time, and contract workers making it more difficult for unions to increase their membership? For the most part temporary and contract workers are less interested in becoming unionized because they are not in a long term job where they would need the services unions can get them (such as job protection). Such workers may also feel as if they can better negotiate their own individual contracts with the employer. It is also harder for all part-time, contract, and temporary workers to organize and join a union as they spend less time on the job. Obviously full time employees are more inclined to join and create a union as they usually plan to work on the job for long periods of time and can easily start or join a union. Act 5 Explain how vies about dirking-water safety have shifted since the Walkerton tragedy. Since the Walkerton tragedy people have become more aware of the issues surrounding water. For the most part people have become more concerned with the safety of the water they are dinking and how it is being tested. However there are also many other environmental concerns now associated with water, in particular the pollution of it, the exportation of water in bulk and the use of water. Recently there has been a strong trend, people and companies are becoming (or appearing to) become more environmentally friendly and there is also a new awareness of how our actions affect the natural environment. In the town I live in there was E. coli bacteria found in many of the residents water (serviced by individual wells). After that incident people became much more concerned with what factors could affect the safety of their water and how these issues could be addressed. What problems might be associated with the implementation of the Walkerton Commission recommendations? In my opinion the two biggest issues with implementing the commissions recommendations would be time and money. While I'm sure most if not all of the recommendations would be very beneficial to the safety of the communities drinking water they would all be very costly and some could take years to come into affect (such as a safe drinking-water act). Many people would see the cost and time necessary to implement them not worth the small risk, while others may believe the recommendations are too numerous and extensive. It would also be very hard and time-consuming to ensure that all of the

recommendations were put in place, and it would take a great amount of debate to set legal standards for water (and to determine who should be responsible for it). Explain why Commissioner O'Connor did not want to declare safe drinking water to be a protected right. While O'Connor believes "the public is entitled to expect that the drinking water coming out of their taps is safe", he chose not to recommend it be declared as a right. In his opinion money would be better used to ensure the safety of drinking water, rather than having it spent on legal action that might ensue if safe water were to become a right. Obviously if safe water were to become a legal right many people would have new grounds to sue on should their water be contaminated. O'Connor also pointed out the other legal options people may take if their water was to become contaminated, and in his view these options were all ready substantial. What follow-up has the provincial government undertaken with respect to the commission's recommendations? Two years after the Walkerton tragedy the Safe Drinking Water Act was presented. The act took into account many of the recommendations and it set standards for drinking water safety. It included provisions to ensure water was tested regularly, that licensed labs were used to test the water, and that those who tested the water were fully trained and licensed. The act also took O'Connor's view on drinking water as a right - in other words safe drinking water is still not a right. The act also called for an annual report to be prepared by each municipality. Act 6 Explain the major remedies available in civil environmental actions. Outline the advantage and disadvantages of each. Once it has been established that a remedy is applicable in a particular case (based on common law) the judge must determine what remedy is appropriate based on the particular circumstances. Two major remedies available are monetary compensation and an injunction. If it is found that the actions of the defendant negatively affected the plaintiff and that the plaintiff is entitled to a remedy; the court can award them damages in the forum of monetary compensation. This type of remedy can provide the plaintiff with a feeling of justice, but it is very hard for the courts to accurately assess the damage done and determine the amount of money that should be awarded. At times this type of remedy may not address the problem and seem like a band-aid solution as the problem may still occur or continue to cause negative health effects. (If a chemical spill affected a resident money may be able to clean up the mess, but their health will always be affected). The second major remedy is an order to do or not to do a certain thing, this is called an injunction. This can be applied to either the defendant or plaintiff and it can often help to resolve issues, as the court can clearly outline what either party can or cannot do (for example the court could order a defendant to stop dumping chemicals in a particular area, and also order them to clean up the previously dumped chemicals). Injunction orders do not always have to be in-favor of the plaintiff or the environment. The process of ordering an injunction can be very extensive and costly as many experts must testify and the courts must weight all of the arguments presented by all sides. An injunction may also cause a lot of controversy, especially when it's in favor of those who appear to be pollutions or harming the environment. (Such as the case of Hayes Forest Services Ltd v. Forrest Actions Network).

Explain the concept of "standing" in a civil case. (a) Standing is a concept in law that requires those who are pursuing a claim or seeking remedy to have the right to do so. For example, someone unaffected by an environmental issue and not in a position of authority to act on environmental law would not have standing to seek remedy or pursue a claim based on that issue. How does it apply to a class-action lawsuit? (b) The concept of standing is particularly important in a class-action lawsuit as the standing's of all the plaintiffs must be checked before any legal action can take place. When certain environmental issues affect many people, and they all want to be involved in the lawsuit, the issue can become very complex and it may take a significant amount of time to ensure the standing of all involved. Act 7 Explain the role of NGOs and lobby groups in environmental protection. Environmental protection is a very serious issue today that is commonly focused on in the media, by our government and by the international community. Lobby groups and non-government organizations often work towards bringing environmental issues into the public view. These groups often ask the government to take action on a particular issue especially when there is little currently being done to address a particular issue. To further protect the environment these groups encourage the public to take action and also attempt to keep the public up to date with the latest issues. Greenpeace is an international NGO that focuses exclusively on environmental issues. The group encourages people to become "environmental activists" and its website contains information on multiple issues affecting our planet. How have the actions of Elizabeth May and David Suzuki contributed to the environmental movement in Canada? Both Elizabeth May and David Suzuki are well known, respected environmentalists and activists. David Suzuki's work and his foundation have been instrumental in getting Canadians informed about current environmental issues, with a current focus on climate change. His foundation has expressed concerns related to the environment to the Canadian government. In particular the group has taken a strong position on overfishing and forestry. The David Suzuki Foundation has also called on Canada to stay true to the Kyoto Protocol. His foundation's website includes information on our oceans, creating a sustainable economy and climate change. His work in the tv show The Nature of Things also helped to bring environmental issues into the minds of Canadians. The work of Elizabeth May has been incredibly important in the environmental movement, she has worked on multiple projects, some exclusive to certain areas and others affecting all of Canada. May represented Cap Breton property owners when a forestry industry implemented a budworm spray program and she went on to work in multiple government positions. In 1986 she was a senior policy advisor to the Canadian federal environment minister and from there she moved on to work for NGOs. Significantly May is the Executive Director of the Sierra Club of Canada. The organization works towards promoting environmental concerns. Obviously her work and the work of David Suzuki has put environmental issues in the spot light. They have both helped to inform Canadians on issues that matter to them and significantly shaped the environmental movement, both nationally and internationally. Should civil disobedience be used to protest laws that are perceived to be unfair? Justify your opinion. Civil disobedience is a forum of non-violent resistance, in this case to a particular law or set of laws. Mohandas Gandhi is internationally known for his avocation of Civil disobedience against unfair laws. In

my opinion Civil disobedience can be a very strong tool when people are faced with oppression or simply unfair laws. It is a way for people to respectfully display their opinions and disagreement with those in power. As outlined in the American Declaration of Independence and other documents like it; in just and fair functioning democracies, the public has both the right and duty to rise against unjust powers to defend their freedoms and liberties. A democratic government should be by the people and for the people; so if it is creating laws that are perceived as unfair or unjust it cannot be said to be doing its job. These ideas and principles can be applied to both environmental issues and many others. Civil disobedience should absolutely be used to protest laws that are unfair; this is both a right and duty of citizens. The use of civil disobedience can help to keep check on those in power and socially advance our country. Act 8 Provide examples of areas where international agreements have focused on environmental concerns. Environmental awareness is becoming a much more common theme in our world. Today environmental issues are taken very seriously, considering the threat of climate change on the Earth. In the past the United Nations and other international organizations have united countries to protect the environment. The Montreal Protocol on Substances That Deplete the Ozone Layer is one such international agreement that focused on the environment and in particular the threat of chlorofluorocarbons. This agreement helped to lower Canada's and other countries negative affect on the ozone by placing regulation on substances that cause the depletion of the ozone layer. Canada and other states also signed the Convention on Biological Diversity through its participation in the United Nations. This convention aimed to protect the biological diversity of our environment. The United Nations Framework Convention on Climate Change also demonstrated the international awareness surrounding environmental issues. This agreement focused on what actions could be taken to combat climate change, including lowering greenhouse gasses. Summarize three examples of situations where Canada has demonstrated its commitment to international agreements. Canada was once considered a leader in regards to international environmental issues; however in recent times this view of Canada has substantially changed. This is mostly due to Canada's failure to meet the agreements of the Kyoto Protocol. Still, Canada has taken leadership in environmental issues and demonstrated its commitment to international agreements at other times. Canada held a meeting in 1987 to deal with the issue of chlorofluorocarbons and the reduction of substances that deplete the ozone layer. This meeting produced the Montreal Protocol on Substances That Deplete the Ozone Layer and as said before this agreement was very affective. Ten years after signing the agreement Canada had lowered its production of substances that cause ozone depletion by 95%. Canada has also held up its agreements with the United Nations, after the Convention on Biological Diversity Canada passed the Species at Risk Act which has helped to preserve our environments biological diversity. Along with the international community Canada has demonstrated its commitment to environmental issues, but there is still much to be done, especially with the threat of climate change. Act 9 What is generally required of laws in order for them to be effective? In general there are three main elements required to consider a law effective. These elements make up most of our domestic laws, and are recognized as necessary by most countries. Any effective law should clearly specify the actions that it prohibits or enforces, the law must make clear what the penalties will

be if the law is not followed, and finally the law should describe how the enforcement of the law will be upheld. If all of these elements are met by a law we can consider it to be effective. Why do some legal scholars suggest that international law is not real law? What arguments against this view could you offer? The concept of international law has been alive for a very long time, and today we have a system of international courts and law. There are many people that do not consider international law to be "real" as there are many differences between international law and domestic law. Some legal scholars suggest that international law cannot be agreed upon or successfully enforced. Others see it as a threat to the sovereignty of states. Many suggest that there is no universal organization to create laws or a single court to over see international cases. They also point out that there is not a "global police force". While it is hard to argue that international law meets all three elements as described in the previous questions, it is still possible for international law to be effective. There are international organizations such as the United Nations that attempt to create agreement between states, and there are international courts (International Court of Justice, International Criminal Court) that have been used in the past to enforce international law, especially when dealing with crimes against humanity. While many of the United Nations agreements are not binding, those made by the Security Council are, and they can be enforced. The United Nations and single states also have methods of enforcing international law, such as implementing economic sanctions, trade boycotts, or trade embargoes with states that do not follow international agreements or law. While international law may not be the same as domestic law this does not make it "fake" law, clearly international law has been used before and in many cases it can be effective. EcoTourism in Antarctica Explain some of the Risks associated with EcoTourism: EcoTourism is travel to almost untouched areas in the natural world. EcoTourism can educate travelers and provided them with an experience like no other; it can also help the local economy. However there are many risks and other drawbacks related to Ecotourism. This activity can have risks to the travelers, the indigenous people, and the natural environment. Although EcoTourism strives to minimize its impact on the environment this is not always possible, and at times, EcoTourism can become a threat to the biodiversity and natural habitats of the environment. EcoTourism will always put a larger stain on the natural resources of any environment and as the number of people traveling to a certain area increases this strain on the environment will as well. EcoTourism also carries many risks for the traveler. There is a chance they may get sick from certain foods they are not use to, or they could come into contact with wild animals. While EcoTourism may help the local economy of an area it can also carry risks for the indigenous people, as their environment may suffer or new development may displace them from their homes. What laws are necessary to protect the continent of Antarctica? What laws provide environmental safeguards for the continent? Identify some of the problems associated with enforcing these laws. Antarctica is a land that is not controlled by any particular state, so international laws must be used to protect the continent. Laws are needed to protect Antarctica's environment, especially the animals and plant life that inhabit the continent. These laws should ensure that people use the continent responsibly and do not allow it to become a dumping ground for waste or used for activities that would threaten the natural environment. At the moment there are current international agreements and laws that protect Antarctica. The Antarctic Treaty ensures that the continent can only be used for peaceful purposes and that nuclear and radioactive waste will not be dumped there. The Madrid Protocol aims to preserve the delicate environment of the continent. This protocol includes other agreements that also strive to

protect the plant and animal life of the continent. However, while all of these agreements and protocols may look good on paper they are not easy to enforce, as no one state has sovereignty over Antarctica. Unfortunately agreements made at the United Nations are not enforceable (besides those made by the Security Council), so it is up to every country with citizens at Antarctica to ensure the land is being used in an environmentally friendly way. Act 10 Distinguish between internal and external sovereignty. Internal sovereignty is the power to create laws and exercise power within one's state. As an example, the Government of Canada is using what we would call internal sovereignty when it creates laws that define what one can and cannot do inside Canada. On the other hand external sovereignty referrers to the power of states to chose to create relationships with other states. This could include deciding to trade with another state, or deciding not to trade with them. This type of sovereignty may also include deciding to create a relationship where two states share jurisdiction over a geographical feature that affects both states, such as a lake or waterway. What international forces are contributing to the erosion of sovereignty? Sovereignty is regarded as an extremely important factor for states as it gives them the power to rule over their country without interference from other states. Some people suggest that states are moving away from true sovereignty and there are many factors contributing to this decline of sovereignty. Many people see globalization as a threat to sovereignty as it brings the world together and eliminates the physical distance between people and states. Technology has brought the world together in many different ways, and we are now much more aware of what's going on in other parts of the world. Globalization can affect how states use their power as this new social connection may influence the decisions made by states. International law also affects sovereignty as its creates rules that all states are expected to follow. As the environment becomes increasingly threatened states may be expected to give up some of their sovereignty an participate in international cooperation to help reduce the affects humans are creating on the natural world. The United Nations has also listed certain human rights that are considered universal, meaning they should be accepted by everyone and every state. Obviously there are many factors that are contributing to the erosion of traditional sovereignty; however some may consider this a move in the right direction and one that will ensure that the environment and human rights will have global protection. Why didn't the British authorities enter the Libyan embassy and make an arrest? There are many reasons why the British authorities did not, and could not enter the embassy and make an arrest. The Vienna Convention on Diplomatic Relations sets out how diplomats must be treated while working in another country, and it clearly states that diplomats are not under the laws of the country they work in. Also embassies are treated as if they are the land of the country they represent, so the British authorities would have no jurisdiction to make an arrest in a Libyan embassy. In this case the shooter had "diplomatic immunity" from the laws of Britain and there would be no way the British Authorities could legally arrest the shooter. What are the potential consequences when one country severs diplomatic ties with another? Embassy's and diplomats play a very important role in the relationships between countries. If one country was to end its diplomatic relationship with another many consequences could occur. It is possible that the countries may stop trading and end all communication between each other. The countries could also encourage or force their citizens to avoid traveling to the other country. Obviously

this could affect the economy of one or both countries. Furthermore if the ties are severed there would be no diplomats to influence political decisions made by the other country. What changes could be made to the Vienna Convention to avoid a situation in which diplomats are shielded from what is referred to legally as "criminal responsibility"? In short the Vienna Convention basically grants diplomats and for the most part, their familys immunity from the laws of the country they are staying in. This means that diplomats cannot be charged by the authorities of the country they are staying in, and it can completely shield them from criminal responsibility. The Vienna Convention could be changed so that the diplomats would be responsible for their actions while in another country. This may included forcing the country they are from to prosecute them for any crimes they commit while working in another country. Changes could also be made that would alter how far diplomatic immunity extends, so that the diplomats would be under the laws of the host country for extreme crimes such as murder. These changes would ensure that diplomats would not become "above the law". Act 11 Ethnocentrism is the belief that one's own culture is best and most natural. In what way might this concept have an impact on the development of international law? Arguably the goal of international law is to promote universal values and beliefs, and also to address issues that affect the entire world. International law is undeniably a threat to the traditional idea of sovereignty and it can be taken as a threat to one's culture. The idea of ethnocentrism can and will have an impact on the development of international law, because those who believe their culture is best will either want to protect their sovereignty, and not follow international law or they will attempt to force their values on others using international law. Clearly ethnocentrism could have two affects on international law, it may slow its progress as countries chose to hold on to their sovereignty and their local culture and values, or it could play an important role in its development as certain cultures and states attempt to force their ideas and values onto the rest of the world. We have already seen some examples of each of these possibilities. It's clear that western ideals and culture is spreading throughout the world, the very idea of the "country" is a western idea. We have also seen recent examples where countries chose to ignore international agreements, such as North Koreas and Iran's decisions regarding nuclear advancements. Cornelius Vanderbilt, a wealthy American industrialist once said, "Law! What do I care about the law? Ain't I got all the money?" Although he was undoubtedly referring to domestic law, could the same philosophy apply to international law? Explain. From my understanding of his statement, Cornelius Vanderbilt was referring to his belief that if one has enough money they are above the law and do not need to worry about it. If we consider "money" in a broader sense and extend it to include power we can certainly apply his philosophy to international law. In many ways we have already seen countries with "power" defying international organizations and law, the United States is a great example of this. The United States is arguably the most powerful country in today's world. They defied the United Nations when they chose to go to war with Iraq and many would argue they violated the Geneva Convention with the interrogation methods they used on suspected terrorists. However there were few if any repercussions from the international community after the United States ignored the United Nations. In many ways I think Vanderbilt is very right with his philosophy.

Act 12 According to the Preamble of the Charter of the United Nations, what are the primary goals of the United Nations? The United Nations came about after the failure of the League of Nations and after two devastating world wars. The Preamble of the Charter of the United Nations makes the fundamental goals of the United Nations clear. Firstly the UN strives to save future generations from the horrors of war by promoting peace, fundamental human rights, the worth of people, and the equal rights of nations regardless of size. This includes the recognition of equal rights and worth for men and women. Its goals also include creating the condition of acknowledgement and respect for international agreements as well as law. It aims to hold states to their obligations and also encourage social development and higher standards of life and freedom. Identify the six organs of the United Nations, and briefly describe the role of each. General Assembly: Every member state of the UN can take part in the general assembly and each state has one equal vote to express their opinions on issues brought forward by the assembly. This sector of the UN meets regularly and may meet at unscheduled times for emergencies. The General Assembly deals with many issues most require a majority vote to be decided, however some that are of critical importance will require a two-thirds majority vote. No decisions made by this council are binding or legally enforceable. Security Council: The main job of this sector of the UN is to maintain global peace and security, it may make recommendations for peacekeepers to be sent to a particular area to avoid conflict, or it may recommend mediation or ceasefires if a conflict has already started. This council is comprised of 15 states; ten are elected by the General Assembly, while five are permanent members. All five permanent members have veto power over any decision made by the Security Council, and nine affirmative votes are needed before any action is taken or recommended. Unlike other UN sectors, decisions made by the Security Council are legally binding, and force can be used if a country does not follow its recommendations. The Secretariat: This sector of the United Nations is the administrative body; it's responsible for the daily services that keep the UN operating. There are 7500 staff working in this sector from 170 different countries and it is lead by the Secretary-General. The Economic and Social Council: This sector is responsible for the economic and social work undertaken by the UN. It oversees the smaller organizations that make up the UN including the World Health Organization. It also deals with Non-government organizations. This sector works under the authority of the General Assembly. The Trusteeship Council: This part of the United Nations is no longer active, however at one time its job was to oversee 11 territories that had been placed under its authority by individual agreements with states. Its goal was to prepare the territories to become fully independent countries. If the United Nations decides it is necessary the five permanent members of the Security Council can effectively reactivate the Trusteeship Council. International Court of Justice: This body of the United Nations is considered its "legal organ". The General Assembly and Security Council elected 15 judges to this court and their task is to settle disputes between member states. The International Court of Justice must also forum opinions on behalf of the

UN or its sub-organizations. While participation in the court is voluntary, if a state chooses to participate it must follow the decision of the Court. Explain what Mitchell meant by his comments about the United Nations. In my opinion Mitchell was admitting that the United Nations was not a perfect organization, but also asserting that it served a valid purpose. He was also advising that states do their best to help and improve the United Nations so that it can be more effective. I think he is also arguing that international relations with other states would be much more of a challenge without the UN. Act 13 Why is the field of human rights a relatively new area of international law? In the past international law focused mostly on the relationships between sovereign states. For the most part, the rights citizens had in a country were considered a domestic matter and one that should be dealt with by that state only. It was also considered inappropriate and insulting if an organization tried to infringe on the sovereignty of a state. For those reasons human rights were kept out of international law as this was seen as something that individual states should govern themselves. However in recent times events have occurred that have raised significant concern over global human rights. These (relatively) recent events have prompted a response by the international community as we now see a need for global recognition of certain rights and freedoms. Identify some of the rights and freedoms found in the Universal Declaration of Human Rights. The Universal Declaration of Human Rights was created in 1948 after the need to protect human rights was recognized by the international community. Some of the rights and freedoms include: -The right to life, liberty and nationality -Freedom from slavery -Freedom from arbitrary arrest -Everyone has the right to own property -Everyone has the right to peaceful assembly and association These rights and freedoms are either directly or indirectly found in the Canadian Charter of Rights and Freedoms. While some of them are ambiguous, they still provide a clear standard for what the international community expects in terms of human rights. Act 14 Explain the reasons for the formation of NATO. The North Atlantic Treaty was originally signed by 12 States on April of 1949. This organization of States was formed to protect the signing countries from the perceived threat of the Soviet Union. The countries signing the treaty agreed to come to the defense of any other signing country if they were attacked. This defense concept is called collective security as all signing States are expected to come to the defense of one another. Why did the end of the Cold War force NATO to change direction? The Cold War was an extremely significant time in history, as two "super-powers" were at the edge of a nuclear war. After the Cold War ended the Soviet Union was no longer seen as the threat it once was, and NATO's original purpose had been to protect countries against the Soviet threat. To continue to serve a purpose NATO had to change its direction to now attempt to create a relationship with the former members of the Warsaw Pact.

What role did NATO play in the Balkan wars? After the Cold War NATO took on other responsibilities, such as managing conflicts between other states. In the Balkan wars NATO, for the first time, used military force against Bosnia Serb positions. The Serb leader Slobodan Milosevic would not agree to protect the Muslim Albanian population of Kosovo, and NATO was attempting to change this. What is Article 5 of the North Atlantic Treaty? Why was it invoked in 2001? Article 5 of the North Atlantic Treaty specifically details the agreements of Collective Security. It states that singing countries will treat an attack on any member of NATO as an attack on all and will use whatever actions deemed necessary to protect and maintain the security of the North Atlantic area. It also states that countries must keep the Security Council informed of any force used, and countries must stop their use of armed force once measures have been taken by the Security Council to restore peace and security globally. This article of the North Atlantic Treaty was invoked in 2001 after the terrorist attacks on the United States because this was considered an armed attack against a member of NATO. Because the article was invoked the other members of NATO would have to help the US take action against the terrorist. Act 15 What concerns did various ancient cultures raise about the treatment of people in times of war? Ancient cultures raised many of the concerns that we share today about the treatment of people during times of war. Specifically, cultures worried that people, both citizens and soldiers, would not be treated in a humane way. Some cultures disallowed any attacks on women and children as well as those who were sick. Many philosophers worked on creating rules or codes that attempted to define what was fair and just during times of war. In what was did war correspondents contribute to an understanding of war? Before war correspondents existed there was very little unbiased information on what really happened during wars. For the most part high-ranking officers would send back reports of bravery and heroic stories to their home country, this obviously lead to a very biased view of war. War correspondents changed this, and they were able to give people a much more realistic and less biased view of what happened during many wars. At first they were able to communicate their reports through telegraphs, today we can see videos of current wars on the internet. This new information also lead to some changes in the codes of war. Specifically the United States Army's code on war conduct was changed after Abraham Lincoln learned of the suffering caused by war. Compare the Nuremberg and Tokyo trials with respect to the purpose of the trails, the outcomes, and criticisms leveled against each. Following World War II trials were held against individuals who the Allied Forces felt violated international law. The Nuremberg trials focused on German Nazi's; they were charged with crimes against peace, humanity, the laws of war and more. While the defence argued that war crimes could only be charged against states, and that the charges were "newly created crimes", this defence was not accepted by the tribunal. In total 19 of the 22 Nazi leaders were convicted; 12 received death sentences, three received life sentences and four were sentenced to 20 years in prison. After the Nuremberg trials the focus shifted onto certain Japanese's people who the Allies believed to be guilty of war crimes. Of the 28 individuals tried 26 were found guilty of the accused crimes. Seven of

the 26 were given death sentences. The crimes included conspiracy to wage an aggressive war and other conventional war crimes. Both trials were heavily criticized and called "a victor's justice". Many argued that there was no justice when only those on the losing end of war would be put to trial, and that any illegal actions of the Allies were overlooked. The Nuremberg trials were criticized heavily because the Nazi leader were charged and convicted of crimes that did not exist during the war. At the same time there were also many supporters of the trails. Despite such perspectives as Justice Pal's at the Tokyo Trials, at the end of World War 2, Americans were not prosecuted for war crimes. Suggest what factors might have led to this decision. During World War II the Americans made the decision to drop two atomic bombs; one on Hiroshima and the other on the town of Nagasaki. Educated estimate place the loss of life at over 200 000 from both explosions combined.* The Americans made the decision to drop the bomb because they felt it would be a very quick way to end the war and save their own people from any more fighting or possibly attacks by Japan. However other's suggest the bombings had a more sinister motive: to demonstrate the Americans power; and that Japan was already trying to surrender. ** While these two bombing have been and continue to be heavily criticized, the Americans were never prosecuted for war crimes. The Americans were part of the Allied forces; the victors of World War II and rarely are victors of wars prosecuted for war crimes. It's also important to note how powerful the Americans were and continue to be in an international sense. In recent times the United States has openly defied the international community with its invasion of Iraq and possibly with violations of the Geneva Convention. The Americans power and their position as one of the Allied forces are the two major factors that freed them from any prosecution.
*http://www.rerf.or.jp/general/qa_e/qa1.html **The Road to 9/11 (2005)

Act 16 starts on the next page.

While there have been many talks on the ever prevailing issue of climate change, little action has actually been taken by the international community to address the issue. On November 5 2009 diplomats and negotiators met in Barcelona, Spain to continue work on a new climate change treaty. Unfortunately this treaty will not be ready for the upcoming meeting taking place next month in Copenhagen. Many states were hoping for a legally binding treaty to come from the meetings, but the United States no longer sees a legally binding treaty as a possibility.1 It seems climate change activists are becoming ever more disappointed with the international community. Greenpeace is one such NGO that is very disappointed with the global leaders; especially Barrack Obama. The group has recently assessed world leaders, and given Mr. Obama a rather disappointing environmental score of 37 out of 100.
2 th

world leaders to personally attend the climate change conference. The petition will be sent to the leaders of Germany, the UK, France, Brazil, China, and the United States.

The goal of these climate change meetings is to achieve lower carbon emissions in developed nations and to have growing economies lower the growth of their emissions. Developed nations will also be asked to contribute money to less developed nations to help them deal with the negative effects of climate change.3 Greenpeace is attempting to ensure many environmental issues will be successfully addressed by the meetings. The group is asking activists to fill out an e-package to be sent to leaders attending the climate change.

Clearly Greenpeace is taking a very predominant role and has strong views in favor of environmental protection. However world leaders must find a balance between protecting the environment and continuing to maintain an active economy. There are many corporate players inside each country that have a strong influence on the political leaders decisions. The United States is one of the largest polluters, and it consumers significantly more oil than any other

However Greenpeace is remaining hopeful; it has recently started a petition urging

1 2

(Guardian) (Greenpeace)

(Assioated Press)

country.4 Obviously this will make cutting emissions a daunting task.

have pointed out, climate change will affect us all. Environmental issues dont respect political borders.

The enforcement of a legally binding climate change treaty will also be a controversial topic. Would the United Nations have to set up a specific commission to ensure countries are meeting their goals? And what repercussions will result if countries surpass set carbon Creating a legally binding treaty on climate change on will not be easy. In the past even morally binding treatys have been very difficult to implement worldwide. While many countries may sign them, very few will take real action on climate change. The United States is a great example of this. It is a signatory of the Kyoto Protocol, but this is simply symbolic. No action has been taking by the United States in respect to the Kyoto Protocol.5 For now it will be up to individual countries to create their own laws dealing with climate change. It seems individual citizens must take the lead and encourage their political leaders to make real progress on climate change. emission levels?

The sovereignty of states must also be taken into account when creating international law. However, as many environmentalists
4 5

(Nation Master) (CNN)

Bibliography for Act 16

Assioated Press. Envoys scale back U.N. climate pact ambitions. 05 11 2009. 07 11 2009 <http://www.msnbc.msn.com/id/33656913/ns/us_news-environment/>. CNN. Clinton Hails Global Warming Pact. 11 12 1997. 07 11 2009 <http://www.cnn.com/ALLPOLITICS/1997/12/11/kyoto/>. Goodman, Al. New climate change treaty could be ready in 2010, U.N. official says. 06 11 2009. 07 11 2009 <http://edition.cnn.com/2009/WORLD/europe/11/06/spain.climate.treaty/>. Greenpeace. Naked emperors: the Greenpeace Guide to Climate Politics. 06 11 2009. 07 11 2009 <http://www.greenpeace.org/international/news/climate-ranking-061109>. Guardian. US scales down hopes of global climate change treaty in Copenhagen. 04 11 2009. 07 11 2009 <http://www.guardian.co.uk/environment/2009/nov/04/us-climate-change-copenhagen-treaty>. Nation Master. Energy Statistics > Oil > Consumption (most recent) by country . 18 12 2008. 07 11 2009 <http://www.nationmaster.com/graph/ene_oil_con-energy-oil-consumption>.

Canadian and International Law

Michael Herdes

September 28

2009
CLN4U Mike Herdes Instructor: Mr. Holla

The Case for the Legalization of Physician-assisted Suicide in Canada

The right to die has been a controversial topic throughout Canada and most of the world. There are currently thousands of people living with disabling conditions that cause them great pain and suffering. While it is legal for anyone in Canada to end their own life, section 241 (b) of the Criminal Code of Canada makes it illegal for anyone to assist a person in ending their life.i People in a great deal of suffering are forced by Canadian law to remain in pain. While they may wish to end their life, many cannot physically do so. To end this unjust suffering, Canadian law must change to allow for physicianassisted suicide; defined as the voluntary termination of ones own life by administration of a lethal substance with the direct or indirect assistance of a physician.ii There are three significant reasons as to why Canadas laws must allow for physician-assisted suicide (PHS); all of which will be explored in great detail. Firstly, no legislative body in Canada should have the authority to prolong the suffering of innocent individuals; secondly, societys changing views on PHS must be represented by law; and finally, the fundamental concept of equity must be applied to the legality of physician-assisted suicide. The laws of Canada play an important role in the lives of all Canadians. They define how our government must operate and also what one can and cannot do. Laws must be created by the proper authority with the proper jurisdiction to do so. However, one must ask who has the authority to create a law that prolongs the suffering of an innocent individual. An individual that cannot physically end their suffering without help. That is exactly what section 241 (b) of the Criminal Code has done. In 1992, Sue Rodriguez, a patient suffering with Amyotrophic lateral sclerosis, asked the question Who owns my life?iii Patients with ALS become progressively paralyzed and within years most are unable to breath or swallow on their own.1 While it is important that the law protects the lives of patients, their dignity and their right to be free from suffering must also be protected. Under section nine of the Canadian Charter of Rights and Freedoms, every Canadian has the right to be free from arbitrary detainment or imprisonment. Is one not detained or imprisoned when they are forced to suffer without hope of

improvement? Article 5 of The Universal Declaration of Human Rights extends on this idea. It grants all people the freedom from torture or to cruel, inhuman or degrading treatment or punishment. It is both degrading and cruel to force those who are suffering to continue to do so. While physician-assisted suicide should be a last resort, it must be an option for those who are undergoing unstoppable suffering due to a medical condition. Clearly, the current law against physician-assisted suicide is ultra vires the jurisdiction of any authority. The values and beliefs of the Canadian society are always changing; as is evident throughout Canadian history. In 1928, the Sexual Sterilization Act of Alberta became part of the provinces law. This act forced mentally deficient individuals to be sterilized. Fortunately, societys views on this practice changed and the law was revoked in 1972.iv In recent history, there have been significant changes to peoples acceptance of gay rights. It is now legal in all parts of Canada for two people of the same gender to marry.v It is important for every democratic country to fully consider the current social views when reviewing and creating laws.vi So far this has not been the case for physician-assisted suicide. While section 241 (b) of the Criminal Code was upheld by the Supreme Court of Canada,vii there have been significant changes to societys views on physician-assisted suicide since that time. In a recent poll conducted by Ipsos North America, 71% of Canadians supported the legalization of physician-assisted suicide.viii While it is important that we respect common law, we must also realize that this law can be changed by the legislature to better reflect the current views of society. Fortunately, this action is already underway and the Parliament of Canada may soon vote on a bill to legalize physician-assisted suicide along with euthanasia; defined as the act or practice of ending the life of an individual suffering from a terminal illness or an incurable condition, as by lethal injection or the suspension of extraordinary medical treatmentix. Some people remained concerned that the legalization of these two practices would lead to a loss of value on human life. However, these concerns have not materialized in any of the places where physician-assisted suicide is already legal; such as the State of Oregon.x With the

change in societys values and beliefs on physician-assisted suicide the parliament must revoke the current law and create one that allows for this practice to help patients end their suffering. Fairness is a principle that is strongly valued by most, if not all Canadians. This is made evident through the Canadian Charter of Rights and Freedoms and the obvious value it places on minority rights. Canada strives to be a country where all people are treated fairly; with respect and dignity. The two concepts of fairness and equity can both be applied to the laws forbidding physician-assisted suicide. It is important to note that while physician-assisted suicide is illegal, attempted suicide and suicide are not criminal offences in Canada.xi While this may appear fair at first glance a closer look reveals the exact opposite. There are many people throughout Canada suffering from a disabling condition, but they have no way to end this suffering on their own. These people are mentally sound and capable of making informed decisions, yet they cannot act on these decisions. Equality does not always produce fairness. Rather, in certain situations people must be treated differently if true fairness is to be achieved. This is the case with physically disabled patients who are in suffering because of their condition. It is unfair and unjust for society to continue to keep them in suffering, especially when there is no chance of their condition improving. We must not force our values and morals on other people whose situation we will never fully understand. We have the duty and responsibility to allow them the right to make their own decision, and allow their decision to be carried out. If the laws of Canada are to truly represent fairness they must be changed to allow for physician-assisted suicide. There will always be controversy surrounding the practices of euthanasia and physician-assisted suicide. However, there are compelling and substantial reasons to legalize physician-assisted suicide for those who are in suffering without the hope of recovery. Clearly, the legislative body of Canada should not make laws that force innocent individuals to suffer; no government should have the authority to do so. Furthermore, the law must change to represent the new views of the Canadian society, and to fully

support the concept of true fairness. By legalizing physician-assisted suicide the Government of Canada will be making both the legal and morally appropriate choice.

Endnotes
i

(Canadian Legal Information Institute) (MedicinNet) iii (CBC) iv (Marsh) v (BBC News) vi (Annice Blair) vii (Smith) viii (Ipsos Reid public opinion poll)
ii
ix

(The American Heritage Dictionary)

(Schafer) xi (Government of Canada)

Bibliography
ALS Society of Canada. The ALS Society of Canada. 24 09 2009. 7 11 2009 <http://www.als.ca/>. Annice Blair, Kathleen Ryan Elliot. Canadian and International Law. Oxford University Press, 2004. BBC News. Canada Senate backs gay marriage. 20 07 2005. 10 11 2009 <http://news.bbc.co.uk/2/hi/americas/4699411.stm>. Canadian Legal Information Institute. Criminal Code. 1 10 2008. 08 11 2009 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html>. CBC. Sue Rodriguez and the Right-To-Die Debate. 24 11 1992. 10 11 2009 <http://archives.cbc.ca/politics/rights_freedoms/topics/1135/>. Egendorf, Laura K. Assisted Suicide. San Diego: Greenhaven Press, 1998. Government of Canada. Criminal Code. Minister of Justice, 2009. Ipsos Reid public opinion poll. As Dr. Kevorkian Released, Just One Quarter (25%) Believe DoctorAssisted Suicide Should Be Illegal . 10 6 2007. 10 11 2009 <http://www.ipsosna.com/news/pressrelease.cfm?id=3526>. Landau, Elaine. The Right to Die. Franklin Watts, 1993. Marsh, James H. Eugenics: Keeping Canada Sane. 2009. 10 11 2009 <http://www.thecanadianencyclopedia.com/index.cfm?PgNm=ArchivedFeatures&Params=A2126>. McCuen, Gary E. Doctor Assisted Suicide. Hudson: Gary McCuen Publications Inc, 1994. MedicinNet. Definition of Physician-assisted suicide. 06 01 2004. 09 11 2009 <http://www.medterms.com/script/main/art.asp?articlekey=32841>. Schafer, Arthur. The great Canadian euthanasia debate. 07 11 2009. 10 11 2009 <http://www.theglobeandmail.com/news/opinions/the-great-canadian-euthanasiadebate/article1353068/>. Smith, Margaret. THE RODRIGUEZ CASE:. 10 1993. 10 11 2009 <http://dsp-psd.pwgsc.gc.ca/CollectionR/LoPBdP/BP/bp349-e.htm>.