Chapter 1 – Heritage of Law The Role of Law in a Democratic Society

Agenda 1. Take-up R. v. Lavalee 1. Take-up R. v. Lavalee 2. The Role of Law in a Democratic Society 2. The Role of Law in a Democratic Society 3. Hwk. Oakes case (reading and questions) 3. Hwk. Oakes case (reading and questions)

Learning Goal for Today By the end of the lesson, students will be able to describe the role of law in a democratic society & identify the distinction between a policy and principled argument By the end of the lesson, students will be able to describe the role of law in a democratic society & identify the distinction between a policy and principled argument

Expectations CGE7e – witnesses Catholic social teaching by promoting equality, democracy, and solidarity for a just, peaceful and compassionate society CGE7e – witnesses Catholic social teaching by promoting equality, democracy, and solidarity for a just, peaceful and compassionate society Trace the development of law from its primary sources… in social and political philosophy Trace the development of law from its primary sources… in social and political philosophy

The Role of Law in a Democratic Society When does the idea of majority rules work in society? When does the idea of majority rules work in society?

The Role of Law in a Democratic Society Ex. BC HST – Policy/pragmatic issue Ex. BC HST – Policy/pragmatic issue

*The Role of Law in a Democratic Society Principled issues are where the legal system plays an important role & where the legal system quite often kicks in Principled issues are where the legal system plays an important role & where the legal system quite often kicks in Brings out the issue of the conflict between the common good v. making space for the individual (i.e. protecting individual rights) Brings out the issue of the conflict between the common good v. making space for the individual (i.e. protecting individual rights)

*The Role of Law in a Democratic Society Rights create space within which individuals can form & pursue individual projects Rights create space within which individuals can form & pursue individual projects Rights trump community good in some cases Rights trump community good in some cases

*The Role of Law in a Democratic Society Arguments of Policy are for the collective good of the community Arguments of Policy are for the collective good of the community Usually originate with government Usually originate with government ex. free high quality high school

*The Role of Law in a Democratic Society Arguments of principle respect some individual or group right Arguments of principle respect some individual or group right Ex. Freedom of Religion Ex. Freedom of Religion Ex. Anti-discrimination provisions of the Charter and the Human Rights Code Ex. Anti-discrimination provisions of the Charter and the Human Rights Code

*The Role of Law in a Democratic Society Some arguments can be both a policy and a principle argument Some arguments can be both a policy and a principle argument Ex. Free High Quality High School (class discussion) Ex. Free High Quality High School (class discussion)

The Role of Law in a Democratic Society One modern legal philosopher, Dworkin, thinks that what legitimizes the legal system is that it legitimizes arguments of principle One modern legal philosopher, Dworkin, thinks that what legitimizes the legal system is that it legitimizes arguments of principle Judges – appointed – don’t have to run for office – rights v. Judges – appointed – don’t have to run for office – rights v. Politicians – elected to talk about & pursue collective goals Politicians – elected to talk about & pursue collective goals

The Role of Law in a Democratic Society The way to protect right of individuals isn’t about democracy, it’s about what rights people have The way to protect right of individuals isn’t about democracy, it’s about what rights people have Ex. Illegal search & seizure – individual rights trump collective good of protection of society Ex. Illegal search & seizure – individual rights trump collective good of protection of society

*The Role of Law in a Democratic Society Section 1 of the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.Canadian Charter of Rights and Freedoms

*The Role of Law in a Democratic Society Under the Charter, courts will examine arguments of principle, but will also consider arguments of policy Under the Charter, courts will examine arguments of principle, but will also consider arguments of policy Section 1 requires the courts to balance all different rights against each other, considering rights holistically as a whole Section 1 requires the courts to balance all different rights against each other, considering rights holistically as a whole

The Role of Law in a Democratic Society What is a reasonable limit? What is a reasonable limit? What does it mean to be prescribed by law? What does it mean to be prescribed by law? What does it mean if a limit is demonstrably justified in a free & democratic society? What does it mean if a limit is demonstrably justified in a free & democratic society?

*The Role of Law in a Democratic Society What about notwithstanding clause? What about notwithstanding clause? Section 33 of the Charter allows a government to temporarily (up to 5 years) keep a law in place, even if it violates the Charter Section 33 of the Charter allows a government to temporarily (up to 5 years) keep a law in place, even if it violates the Charter Generally, same as s.1 argument Generally, same as s.1 argument

The Role of Law in a Democratic Society Doesn’t this completely gut the Charter? Doesn’t this completely gut the Charter?

The Role of Law in a Democratic Society Ex. Common law partner rights to support in Quebec upon breaking up Ex. Common law partner rights to support in Quebec upon breaking up Need to discuss distinction between gov’t disagreeing for policy reasons (ignoring trump of individual rights) v. disagreeing b/c they thing it is a bad law Need to discuss distinction between gov’t disagreeing for policy reasons (ignoring trump of individual rights) v. disagreeing b/c they thing it is a bad law

Obligatory Humour Break

The Role of Law in a Democratic Society Oakes Case – Homework – Read handout online (Classnet – Unit I Heritage – Case 2 – Oakes & do ?’s KU 1,3, A 1) Oakes Case – Homework – Read handout online (Classnet – Unit I Heritage – Case 2 – Oakes & do ?’s KU 1,3, A 1)