Law : The Charter and the Courts intro
Summary
TLDRThis lecture explores the Charter of Rights and the role of courts in shaping law and morality in Canada. It discusses key questions about the nature of law, who should determine it, and how laws reflect societal values. The lecture covers rights versus freedoms, the balance between individual and group rights, and how historical events like Nazi Germany influenced legal thinking. It also touches on Canada's evolving legal landscape, focusing on the protection of minority rights and the ongoing debate over whether the Charter should evolve with modern societal changes.
Takeaways
- ๐ The lecture discusses the history and importance of the Charter of Rights and Freedoms and how it relates to the Canadian legal system.
- ๐ค It poses questions about the universality of laws, the right to ignore disagreeable laws, and the possibility of communities having different civil laws.
- ๐ The lecture explores who should determine the law, whether it should be representative government, courts, or the general public, and the implications of each.
- ๐ It defines law as a set of rules prescribed by the state or courts, generally instructing what not to do rather than what to do.
- ๐ข The lecture considers the source of law, questioning if it should be top-down from a small group or bottom-up from the people.
- ๐ฝ It discusses rights and freedoms, emphasizing the need to differentiate between the two, and provides examples of rights in a democracy.
- ๐ The lecture contrasts Canadian laws with those in the United States, particularly regarding self-defense and the 'stand your ground' laws.
- ๐ It touches on the concept of freedoms, such as speech, thought, assembly, association, and movement, and the complexities involved.
- ๐๏ธ The lecture examines the role of morality in law and how it has changed over time, affecting what is considered right or wrong.
- ๐ It provides historical examples of how laws have reflected the morality of the time, including changes in women's rights and minority rights.
- ๐ The lecture concludes by encouraging reflection on whether the Charter of Rights is a static document or one that should evolve with societal changes.
Q & A
What are the fundamental questions about law and society discussed in the lecture?
-The lecture prompts the audience to consider whether everyone should follow the same law, if individuals should be allowed to ignore laws they disagree with, and whether communities should be permitted to follow different laws in civil matters such as marriage and divorce.
What is the definition of law as presented in the lecture?
-Law is defined as a set of rules written by the state or by courts that individuals are prescribed to follow, which are generally negative in nature, instructing what not to do rather than what to do.
Who should determine the law in Canada according to the lecture?
-The lecture discusses various entities that could determine the law in Canada, including the representative government, courts, the Supreme Court, elected leaders in parliament, provincial and federal courts, and the general public.
What is the difference between a right and a freedom as discussed in the lecture?
-A right is something one is entitled to, such as the right to vote or the right to education, whereas freedom refers to the liberty to act or speak without constraint, such as freedom of speech or freedom of movement.
How does the lecture contrast Canadian self-defense laws with those of the United States?
-In Canada, one can defend themselves if under immediate threat but has a duty to retreat if possible. In contrast, the United States' 'stand your ground' laws allow the use of deadly force in self-defense without a duty to retreat, even in public places in some states.
What historical changes in morality and law are highlighted in the lecture?
-The lecture highlights changes such as the criminalization of abduction of women in 1909, equal grounds for divorce in 1925, and the inclusion of women in Canada's Olympic team in 1928, reflecting a shift in societal views on gender and rights.
What role did Bertha Wilson play in Canadian legal history as mentioned in the lecture?
-Bertha Wilson was the first woman justice of the Supreme Court of Canada, who wrote a majority judgment that struck down Canada's restrictive abortion law, significantly impacting women's rights in the country.
How does the lecture describe the purpose of the Charter of Rights?
-The Charter of Rights is designed to protect individual rights, minority rights, and community rights, particularly from the state. It reflects the societal values and the push for rights protection during the 1960s and 1970s.
What is the significance of the year 1982 in the context of the lecture?
-1982 is significant as it is the year the Charter of Rights was written, reflecting the societal feelings and the need for rights protection at that time.
What challenges does the lecture suggest the Charter of Rights faces in the modern age?
-The lecture suggests that the Charter of Rights must contend with modern issues such as freedom of speech on the internet, which is global, and the concept of freedom of movement in an interconnected world.
How does the lecture encourage the audience to think about democracy and rights?
-The lecture encourages the audience to consider whether democracy can infringe upon rights, the implications of having the right to vote, and the rarity of female prime ministers in Canada, prompting reflection on gender equality and political representation.
Outlines
๐ Introduction to Law and Society
The lecture begins by posing questions about the universality of law, the permissibility of ignoring disagreeable laws, and the possibility of communities having their own laws. It introduces the concept of law as a set of rules established by the state or courts and discusses who should determine these laws in Canada. The lecture also explores whether laws should be imposed top-down by a select group or bottom-up by the people. It touches on the idea of rights and freedoms, contrasting them and prompting the audience to consider their limits and the entities responsible for enforcing them. The lecture also references the 'Castle Doctrine' and 'Stand Your Ground' laws, comparing them to Canada's more restrained approach to self-defense.
๐๏ธ Rights, Freedoms, and Morality
This section delves into the complexities of rights and freedoms, such as freedom of speech, thought, assembly, association, and movement. It questions whether these should be limited and who should be the arbiter of such limitations. The lecture then connects to the topic of morality and how law reflects societal morals, using historical examples to illustrate how laws have evolved over time. It contrasts the moral beliefs of the 1940s, such as Nazi Germany's Aryan supremacy, with the social changes of the 1960s, including protests against racial integration, the Vietnam War, and the rise of various rights movements. The summary emphasizes the shift from government-centric morality to individual and minority rights, leading to the establishment of human rights declarations.
๐ Historical Changes and the Charter of Rights
The lecture continues by discussing the historical push for minority rights and the incorporation of the UN Declaration of Human Rights into Canadian law. It highlights the protection of individual rights against state power, not just from criminal acts by others. The discussion includes the evolution of rights, such as women's rights to divorce on equal grounds, the inclusion of women in the Olympic team, and the fight against restrictive abortion laws. It also mentions the first woman justice of the Supreme Court of Canada, Bertha Wilson, and her role in striking down Canada's abortion law. The lecture emphasizes the balance of individual, community, and national rights as reflected in the Charter of Rights, written in 1982.
๐ The Evolving Nature of Rights and Freedoms
The final paragraph ponders whether the Charter of Rights is a static document or if it should evolve with societal changes. It raises questions about the application of freedom of speech in the context of the global internet and the implications for freedom of movement and thought in a modern age. The lecture prompts reflection on whether hate speech falls under free speech and how religious freedom interacts with the principle of equality. It also questions the democratic process, considering Canada's history with female prime ministers, and encourages critical thinking about the ongoing relevance and adaptability of rights and freedoms as outlined in the Charter.
Mindmap
Keywords
๐กCharter
๐กLaw
๐กMorality
๐กRights
๐กFreedoms
๐กSue Generous Law
๐กSelf-Defense
๐กDemocracy
๐กParliament
๐กSupreme Court
๐กCharter of Rights
Highlights
The necessity for everyone in society to follow the same law.
Questioning whether individuals should be allowed to ignore laws they disagree with.
The debate over whether communities should have the right to follow different laws in civil matters such as marriage and divorce.
The definition of law as a set of rules established by the state or courts.
The question of who should determine the law in Canada: representative government, courts, or the Supreme Court.
The distinction between top-down and bottom-up law creation.
The impact of different groups setting the law on society.
The difference between rights and freedoms in a democracy.
The concept of 'stand your ground' and 'castle doctrine' laws in the United States versus Canada's approach to self-defense.
The idea that freedoms and rights should not be unlimited and the question of who should limit them.
The historical context of rights and how they reflect the morality of society at different times.
The shift in morality and societal beliefs from the 1940s to the 1960s and its impact on law.
The role of the United Nations Declaration of Human Rights in shaping Canadian law.
The historical changes in Canadian law regarding women's rights and the role of the first female justice of the Supreme Court of Canada, Bertha Wilson.
The balance of individual, community, and national rights as outlined in the Canadian Charter of Rights.
The question of whether the Charter of Rights is a fixed document or if it should evolve with societal changes.
The complexities of freedom of speech and religion in the context of modern global challenges.
Transcripts
welcome to this
lecture on the charter and the courts
giving you
a brief history about the charter
so before we begin there's a couple of
questions for you to ponder firstly
should
everyone in a society follow the same
law
secondly should you be allowed to ignore
laws that you disagree with
and finally should we allow communities
to follow laws that are different
in state law in terms of civil law
marriage
divorce things like that if you remember
back to the juris prudence
comes into the question of sue generous
should we
have a sue generous law only one and do
we live in a sue generous society
so what is law
law by definition is a set of rules
written by
the state or by courts that you're
prescribed to follow
laws are generally
negative so don't do this rather than do
that
bear that in mind and also who should
determine the law in canada
should it be the representative
government
should it be the courts should it be the
supreme court
who should actually do this and should
the law be top down
i.e set by a small group the top who's
saying we're going to impose this law
upon you
or bottom up that is the laws coming
from the people
the people saying the referendum these
are the laws we want
we want this to change to better reflect
us
who should determine the law should be
government
the vast bureaucracy that we have of
government
of expert civil servants determining
laws and procedures should it be
parliament or
our elected leaders were meant to
represent us in parliament
should it be the supreme court nine
justices
unelected but experts in legal doctrine
should it be provincial and federal
courts the lower judges
out in the field or should it be the
general public
who sets the laws and think about
what impact would have
what the impact would be in society if
only one of these groups was able to set
the law
if you're in parliament in the ruling
party wouldn't you be tempted to write
laws that benefit
just you what about
if it's the general public the general
public or your community
could set up your own laws what are the
advantages
and importantly disadvantages of this
so we're going to be learning a lot
about rights and freedoms
and one of the important things you need
to work out is the difference between a
right
and a freedom and think about what
rights do we have in a democracy you
have the right to vote
education health security do the right
to self-defense
what does it mean to the right to vote
that means every four years or five
years you can put an
x on a piece of paper right to an
education
you have a right to a good education
well no you just have a right to an
education and only to a certain level
and then you have to pay for it you have
a right to health care
but ironically this doesn't include your
teeth
or your eyes if you're over the age of
18 because
i don't know maybe you don't need your
teeth or your eyes to stay healthy
you need the right to national security
what about your own personal security
well that's why we have a police force
what are the limits of self-defense in
canada
and we'll also go through using a lot of
examples of how
honestly these differ from the united
states
you'll be hearing a thing called the
castle doctrine
and stand your ground which is a truly
terrifying law in the united states
in canada you can defend
yourself if you're under immediate
threat but you have a duty
to get out of the area someone comes
into your home you have the right to
self-defense but you don't have the
right to kill them
in the united states there's a stand
your ground law
which says if someone threatens you you
have a right to stand your ground and
fight back
now it used to be only on your property
so if you're on your property and
someone came and you felt threatened you
could use deadly force to stop
them but in certain states in the united
states this castle doctrine the stand
your ground law
can operate anywhere so if you're in a
parking lot if you're in a park
you can kill people and then claim they
were threatening you
what are your freedoms what freedom
should you have speech
thought assembly association movement
what do those mean as we go through this
course
you're going to find the complexities of
this and how
it's not always as simple as it seems
should your freedoms and your rights be
limited
and if they are limited who should
determine witness occurs
should it be your local police officer
should it be a local magistrate should
it be the government
courts and who should
not have full rights who shouldn't have
the
freedom of speech who shouldn't have
freedom of movement well
if you're incarcerated in a penitentiary
then
on a correctional institution you
probably don't have your full rights
you certainly don't have freedom of
movement
why do we determine that only 18 year
olds are
allowed to write allowed to vote and
should we as in australia penalize
people who don't use this right
in australia you will get fined if you
do not vote
so let's talk about morality rights and
the law this reflects
partially on the stuff we covered in
jurisprudence
but you'll see the links coming through
how does law reflect the morality of the
society
and the interesting thing to look at
here see how laws have changed over time
and the critical thing here of course is
a charge of rights and that reflects the
morality of
the time how are your rights upheld by
law
and should the law protect the rights of
an individual or the group
because often these are going to come in
direct conflict
what do you do
so morality moral beliefs are about
society based historically within a
religious framework
much less so now and morality differs
greatly between cultures
and time periods bear that in mind
if we go back to the 1940s 1930s 1940s
the morality of the time in nazi germany
was
one of aryan supremacy
under the nazis and the building of
death camps like auschwitz which had the
sign as you see there
work will set you free six million jews
were killed
exterminating the death camps
two million polls hundreds of thousands
of homosexuals
millions of russians in japan
was a similar brutal
conditions were done against people in
china
korea throughout the asian
territories um horrific
chemical warfare was conducted millions
died in china under the japanese
and this was a morality of the time that
there were certain
groups or ethnicities that were superior
to another and you had a duty to
exterminate the unworthy
when you think historically about our
morality now it changes
i think very strongly about this there's
a photo from the 1970s
people protesting outside a beauty
pageant
which still carries on
it's from the 1950s people
protesting against racist laws and
according to the national guard
to stop racial
integration and
protest against the vietnam war in the
united states
before the 1960s
before the 1940s there was a strong
belief that the government was right
the government protected your interests
but then
after this discovery the death camps and
the realization
that the government's always out aren't
always out to help you
there was a shift in morality
and this really was emphasized in the
1960s where people were protesting
avidly against governments and saying no
you are a threat
so in end of 1945 there was an
understanding of what fascism could do
there was a
institution of the dick used you in
declaration of human rights and the idea
that we have
universal human rights 1960s massive
social change
1968 rights in paris the states canada
anti-vietnam war rise of feminism civil
rights anti-colonialism
growth in the quebec freedom movement
and the idea of
minority rights and democracies just
because you got 51
of the population doesn't mean the other
49 should be ignored
so the minorities are saying we're being
oppressed
and the status quo is wrong and
oppressive
again 1960s and 70s had pushed for
safe legal abortions fighting against
priest brutality
the idea of minority rights in quebec
and the idea of equality and these
rights were
hard fought and ironically
we still have the same protests
so if you want to know more listen to
the cbc massey lectures the rights
revolution which goes into more detail
on this i will post the
link up online so
in this time of change there's the idea
of
we must protect minority rights we must
incorporate in canadian law
the u.n declaration of human rights and
we must be protected not so much against
each other
as normal criminal law does
but against the powers of the state
and the bills of rights and declaration
of human rights
is really protecting us from the
government
someone can mug you and take your money
and you will lose money and maybe get
injured the state can take away your
voice
the state can take away your freedom of
speech your right
democracy your right to change democracy
and that's far more harmful and the idea
was
that this is what we need to be
protected against and this is where the
child of rights comes in
is that it is protecting you against the
state
rather than protecting you from against
other people
there was a significant increase in
people power increasing workers rights
to strike solidarity in poland casato
and south africa
and the rightful people to protest the
berlin wall anti-globalization
protests women's rights civil rights
black rights
first nations rights so
think about let's go back in time in
1909
the criminal code in canada was amended
to criminalize the abduction of women
before this abduction of any woman over
16 was legal
except if she was an heiress the maximum
penalty
for stealing a cow was higher
than for kidnapping in ers 1909
think about it this is canada
1925 federal divorce laws changed to
allow a woman to divorce her husband on
the same grounds that a man could
divorce his wife adultery
before this she had to prove adultery in
conjunction with other acts such as
sodomy or bestiality
1928 canada's olympic team included
woman for the first time
there was a systematic idea
that women were less than men and women
were property
and this still trickles through to today
which is kind of worrying
the laws reflect the morality of the
time and the morality
changed and so did the laws except it
took
longer for the laws to change but the
laws don't change on their own
you don't have all these people in power
saying hey i'm going to give away power
you have to force the change
1988 first woman justice of the supreme
court canada
bertha wilson wrote one of the majority
judgments which struck down canada's
restrictive
abortion law when she first applied to
law school
professor told her to go home and take
up knitting
so the law schools themselves were
designed to exclude
women and women like bertha wilson
forced change to happen and because she
ended up in the supreme court
she forced change for the better for
canadian society and you can thank
her for helping to strike down abortion
laws which
is one of the things we'll be getting
into later
so in canada when we think about the
charter of rights there's a balance of
rights of the individual
the community in the nation it's a very
delicate balance and there's
always competing rights but
this the charter of rights is based on
this rebellion in the 1960s and 1970s
against the states and if you remember
this
that the criminal law protects you from
other people
the charter of rights protects you from
the state
it protects minority rights protects the
rights of the community
the province quebec and first nation
rights in particular are written into
this because at the time of writing
quebec was fighting for secession
first nationwide's becoming really
really important
and then charter itself written in 1982
reflects the feelings of the time
the question you're going to think about
is is this document
locked can we read in can we say this is
a document that we cannot change or
should it be changed
as we have developed it's been a long
time since 1982
when we talk about freedom of speech
how does that work out with the internet
which is
global
how do we talk about freedom of movement
or thought
in a modern age and that's what we're
going to be getting into
next think about
your rights free speech do you have the
right to yell
fire in a crowded hall of course there's
you've got a yell covered
does free speech include hate speech
what do we do with freedom of religion
under the charter it says that you're
allowed to
engage in your religion but what about
religious beliefs that discriminate
that goes against another part of the
charter that says everyone should be
treated equally
is democracy a fringement on your rights
you're the right to vote
does that mean you can vote for anyone
who ends up
in power why has canada only had
one female prime minister
think about it
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