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Law test prep


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What is the statute of Westminster?

- Recognized Canada's full indepedence within the commonwealth,

- Control of foreign policy,

- Made Supreme Court highest court in land,

- Ability to patriate.

Significant because BNA Act could have been patriated but was not.
What is the BNA Act?

Act of British Parliament under which Canadian Dominion created: British North America Act. Changes only made in Britain. Acted as basis of Canadian Constitution.
Why was the BNA Act not patriated?
Amending formula could not be agreed upon for the provinces feared loss of provincial rights.
Who is René Levesque?
Leader of PQ - seperatist party in Quebec. Elected Premier in Quebec referedum for seperation.
What was the result of the referendum?
Nay by 60% b/c Trudeau & Cretien vehemont campaigning against.
What did Trudeau promise?
To reform the Constitution if the referendum was voted down.
What happened when Trudeau attempted to patriate the Constitution?
He encountered problems:
- Ammending formula,
- Gang of 8: unified opp. against Feds,

Charter of rights:
- Levesque concerned about protection of French rights and culture, argument over Parliament supremacy.
What is unilateral patriation?
When Federal gov't attempted to patriate constitution without provincial consent.

Supreme Court of Canada ruled that were allowed to legally do so but not advisable b/c there was unwritted convention that when provincial rights might be affected, federal gov't would work with provinces.
What broke the gang of 8?
Trudeau struck seperate deal with Levesque: nationwide referendum on the Charter. When announced other provinces felt betrayed and thus more open to negotiation.
What is the kitchen meeting?
a priate meeting among three ministers (chretien, mcmurtry, romanow)that led to a compromise.
took place in a kitchen
quebce was left in the cold
agreed to an amending formula
notwithstanding clause to protect provinces
what is the "night of long knives"
it is what the quebeckers call the kitchen meeting, because quebec was left in the cold and felt betrayed
when was the signing of the constitution on parliament hill? and who signed it?
april 1981

Trudeau, Chretien, and Ouellet
What was the amending formula?
7/10 provinces, 50% of population
What is section 52?
Charter Laws are supreme in the country and all laws must conform to charter.
What is section 31 of Constitution?
Applies to all provinces as well: Provincial government must also follows the laws outlined in the charter. Applicable only to the individual vs. state and not ind. vs. ind.
What section 33 of the Constitution?
Notwithstanding clause!

Federal government or provincial government may opt out, but law must be reviewed every 5 yrs.
What is section 1 of the Constitution?
Reasonable limits clause: Charter suggests rights are fundamental but not absolute.

3 principles must be met: Limitation must be reasonable; Limitation must be stated in the law; Limitation must be demonstrably justified (proved necessary).
When the court finds that limitation of rights cannot be justified, what do they do?
1. Strike down law, or,
2. Read it down (law is generally acceptable but not in this particular case)
The freedom of the offender always ___________. The _____________ has to be proved that it will better society. If the limiting code wins it is said that the case is ________.
precedence; limiting code; saved.
What were the facts of the first case of Dr. Morgentaler?
R v. Morgantaler 1973-1974 Quebec

Morgantaler charged Nov 1973 under S.251(4) of the criminal code for performing an illegal abortion on a 26 yr old woman. Admitted to performing 6000-7000 beforehand.

Defense: S.45 abortion was like any other medical surgical procedure.
What four conditions must exist for a surgical operation (S.45)?
1. a surgical operation in the orginary meaning of the term,
2. undertaken for the benefit of the patient,
3. performed with reasonable care and skill,
4. considering health of patient and other relevant circumstances, it had to be reasonable to perform the operation.
What was the outcome of of R v. Moganteler 1973?
Jury in lower court acquitted Morgantaler, crown appealed and decision overturned.

Public outcry upon guilty verdict. Sentenced to 18 months jail, 1 yr probation.

Appealed but found guilty.
What was the legal significance of R v. Moganteler 1973?
First time in Canadian history that supreme court upheld a conviction imposed by an appeals court on a person found not guilty by a jury.

This led to Morgantaler amendment which allows courts to either uphold jury decision but not reverse it, or to call new trial.
What were the facts of the second case of Morgantaler?
R v. Morgantaler 1975 Québec

Tried in late may 1975 during the time he was serving 18 month sentence. Did not defend using S.45. Pleaded urgency, medical neccessity and unavailability of adequate abortion facilities in hospitals
What was the legal outcome of the R v. Morgantaler 1975?
Jury found Morgantaler not guilty.

Crown appealed but appeal court upheld jury aquital and rejected all 5 crown motions.

Justice Minister Ronald Basford ordered new trial for the doctor on the earlier abortion trial. Overturned 18 month sentence.

Crown appealed to supreme court on March 15 1976, refused. New trial held in Sept 1976 and found again, not guilty.
What effect should Mr. Justice Bisson's charge to the jury probably have had on the jury's decision in this second trial of Morgantaler?
Essentially saying they should not consider what his defense was but they should again consider S.45.
In what ways did Morgantaler's defense in the second trial differ from that in his first?
He didnt use S.45 instead used urgency, medical neccessity, lack of adequate abortion facilities.
What are facts of the case of Morgantaler's third case?
R v. Morgentaler, Smoling, Scott 1988 Ontario

Toronto: opens clinic on Harbord performs abortions, again charged with performing illegal abortions.

Defense: Necessity (urgency), contrary to Charter S.7 (discriminated against women and denied control over own bodies) and that jury could ignore judge's final instructions because he was being prosocuted under a bad law (would send message to lawmakers that law should be changed).
What were the outcomes of R v. Morgentaler 1988?
Jury says not guilty, crown appealed on grounds that trial judge had not sufficiently cautioned jury that they could not aquit because they did not approve of the law, supreme court of ontario orders new trial.
In the fall of 1985 what was the Ontario Court of Appeal's decision re: Morgentaler.
Appeal quashed old trial and ordered new on ground:

1. defense of necessity could only be used in situations of clear and imminent peril

2. Charter defense fails because sexual discrimination was due to act of nature, not legislature, women are entitled to control own bodies but other lives at risk.

3. Juries not law makers cannot find innocence when judge has instructed it will apply.
What happened in 1988 re: the third Morgentaler case?
Supreme court reversed Ontario court of appeals order on grouns that second section of charter granted women full control over their bodies. Right to life, liberty, security of person. This decision restored the original aquittals and effectively destroyed existing abortion law.
What is the legal significance of the Truscott case?
Steven Truscott was the youngest person in Canada to be sentenced to hang for the rape and murder of Lynn Harper in 1959
What is the Meech Lake accord?
Government of Mulroney reopened the debate to bring Québec into constitutional fold. 1987: secured agreement of 10 premiers including Quebec's Robert Bourassa.

Not popular: people alarmed because it designated Quebec as distinct society, Didnt know how courts would interpret it and if quebec govt would get special power. Fell when Manitoba and Nfld failed to pass it by 1990.
What is the Charlottetown Accord?
After Meech Lake Accord, second effort to bring Quebec into constitution. Because many Canadians view Meech Lake as back room deal so reacted with suspicion.

Reiterated Quebec as distinct society and contained features that appealed to wider range of Canadians such as aboriginals, linguistic minorities, seekers of senate reform, protection of health programs and workers rights.

National referendum: failed to pass b/c population fed up with endless constitutional squabble, economy, free trade and gst.
What are the facts and outcomes of R v Oakes (????:??)
R v. Oakes 1986 Supreme Court of Canada

In 1981 Oakes charged with possession of narcotic for purpose of trafficking. Police found money on him. Told police drugs was for personal use and cash came from WCB cheque.

First part of trial proved possession, in second part when Oakes was called upon to prove he did not have for purpose of narcotic, he argued reverse onus violated S.11 of the Charter. Trial judge accepted argument and convicted only of possession.

Crown appealed, and in 1983 Ontario Court of Appeals unanimously dismissed appeal. Reverse onus section of Narcotics Control Act violates Charter.
What were the facts of Ford v AG Quebec (XXXX:XX)
Ford v Attorney General of Quebec 1988 Supreme Court of Canada

Ford challenged the vailidy of two sections. Sign at entrance to her store was Laine Wool and Charter of French Language: Bill 101, public signs must be in French only. Ford informed that sign not in conformity and must be changed, challenged on basis that it infringed on freedom of expression in Charter of Rights and Freedoms.
What were the outcomes of Ford v AG Quebec 1988?
Quebec court of appeal ruled that the two sections of bill 101 were invalid.

AG Quebec appealed to Supreme Court of Canada which also ruled invalid.
What is the judicial reasoning for Ford v AG Quebec 1988?
Both sections were found to infringe the Quebec Charter of Human Rights and Freedoms. Provision for use of french signs only in commercial sighs and advertising found to infringe S.2b of the Charter.

Freedom of expression includes the right to express oneself in the language of one's choice.

AG didnt demonstrate the requirement that the use of french was necessary for the acheivement of legislative purpose. Hence two sections of bill 101 could not be saved.
How did Quebec Priemer Robert Borassa react to the Supreme Court's Ruling on Ford v AG Quebec 1988?
Introduced Bill C-178 making use of notwithstanding clause. Original law concerning the use of french law only in signs was able to stand.
How many sections was Ford challenging in the Charter of the French language?
What is another name for Bill 101?
Charter of the French Language
What section of the Quebec Charter of Human Rights and Freedoms guarantees Ford's freedom of expression?
Section 3 and also guaranteed by the Canadian Charter of Rights and Freedoms.

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