WHAT CONDITIONS SHOULD BE IN PLACE FOR CHANGE TO OCCUR IN AN ORDERLY FASHION?
THE RULE OF LAW formulated in the Magna Carta in 1215; the fundamental principle of law which states that no one is above the law - it applies equally to everyone; three important parts: i.a general recognition that law is necessary in an orderly society; ii.that the law applies equally to everyone; iii.that a person’s legal rights will not be taken away except in accordance with law. respect for the rule of law means that changes to the law will occur in an orderly fashion and in a way that reflects the decisions of a democratically elected government.
A DEMOCRATIC GOVERNMENT allows for the most peaceful and orderly legal change – makes legal change EASY; gives people the power to change their government by voting in regular and free elections …This means that an unpopular government can be voted out of power and replaced by one that has pledged to repeal or reform laws that the voting public considers unjust; a bill of rights or a constitution allows people to have a clearer idea of their most fundamental rights and freedoms under the law, enabling those people to petition the courts to have those laws which violate rights and freedoms to be deemed unconstitutional; a democracy allows for people to advocate for legal change through lobby groups, petitions, or by participating in demonstrations or voting in referendums.
AN INDEPENDENT JUSTICE SYSTEM judges must be able to function independently of other branches of government - without the fear or threat of losing their position or of being imprisoned. to enable independence, the judiciary for a country’s court system should be organized in a hierarchical or pyramidal fashion, with local courts at the bottom and higher courts at the top, which allows for a system of appeals.
DEMOGRAPHY changes relating to birth and death rates or to trends in immigration, education, and employment. For example: …In Canada in 1900, most people lived in rural, rather than urban, communities …few women worked to help support their families …Today, most people live in urban centres, and in most households, both spouses work to help support their family. …As the transition was made from rural to urban centres, laws were passed to ensure a safer working environment in factories, and laws and regulations were passed to raise standards in sanitation, public health, and housing so that the workers could have cleaner and safer places to live.
TECHNOLOGY change as a result of changes in technology For example: …with the introduction of the internet, it has become necessary for the government to create and enforce laws regulating the distribution of pornography on line; …new laws have been introduced over the years that make it clear as to which level of government has jurisdiction over things like radio and television broadcasting; …Advances in biotechnology (cloning, stem cells, harvesting fetuses, etc.) have brought many new issues to the forefront, such as how much government regulation should there be? And how do we balance the rights of private business with public good?
CHANGES IN SOCIAL ATTITUDES (VALUES) shifts in values held by a broad spectrum of society that are demonstrated and brought to the attention of our government by lobby groups For example: … it took time before it was believed by most of society that drunk driving is a serious crime; …it has only been within the past few years where smoking has been banned in public places; …Laws preventing abortion and gay and lesbian marriages have been struck down due to changes in social values; …Laws are accommodating to our cultural diversity, i.e. the recognition of non- Christian religious holidays.
NATIONAL EMERGENCIES laws that are passed in response to conditions created by national emergencies. For example: …the War Measures Act, which gave the federal government the power to restrict the civil liberties of Canadians, was introduced after World War I and used by Prime Minister Pierre Trudeau during the October Crisis in 1970. …after 9/11, the Canadian government introduced the Anti-terrorism Act which, among other things, greatly increased the investigative powers of police and security forces.
GLOBALIZATION Though countries are sovereign nations, as we become larger players in the global market, we could become subject to international rules, norms and standards that clash with our own; …The development of international norms, standards, and laws on business can and have impacted Canada’s own laws; For example, the Kyoto Protocol (international agreement to end global warming) has resulted in countries passing new regulations regarding emissions from power plants and vehicles.
INDIVIDUALS individuals who struggled to change unjust laws or to pass new laws they thought necessary in a just society Often, to be successful, groups use “civil disobedience” – the active refusal to obey certain laws, demands and commands of a government or an occupying power, without resorting to physical violence - to achieve their goals. This involves the use of non-violent tactics to achieve their aims. Were it not for Rosa Parks refusing to give up her seat on the bus, Dr. Martin Luther King Jr. Would not have organized a boycott of the Alabama bus system, sparking the whole American civil rights movement.
INDIVIDUAL: NELSON MANDELA fought his whole life to dismantle the apartheid system, a government policy of racial discrimination and segregation, in South Africa. Although he spent 27 years in prison, by the 1990s he had succeeded, and in 1994 he became the first black president of South Africa.
INDIVIDUAL: DR. HENRY MORGENTALER challenged the abortion law stating it infringed/violated a woman’s section 7 of the Charter right to security of the person. The Supreme Court of Canada declared the law unconstitutional and of no force or effect. Canada’s abortion laws would not have changed without his persistence – his actions brought the issue to the courts
COLLECTIVE ACTION To move the government to the point at which it is willing to change one of its own laws, it is necessary to develop a widespread consensus that the law needs to be changed. This is easier to accomplish when a group of people works together. The most effective ways for groups of people to work together to change the law include the following: lobby groups (i.e. MADD), Royal Commissions, legal scholarship, and political demonstrations.
THE COURTS After the Charter of Rights and Freedoms became law in 1982, Canada’s courts received a greater role in law reform – the courts can now strike down any law that infringes the rights and freedoms listed in the Charter. …In R. v. Therens, the defendant was drinking at a birthday party, and, after learning that two friends had been killed in a canoeing accident, he drank some more. While driving home, he crashed his car into a tree. Police at the scene demanded that he come to the station and provide a breath sample for analysis, but did not advise him of his right to seek a lawyer, and Therens did not ask for one. He went to the station and gave his breath sample which revealed excessive blood-alcohol levels, and was charged and convicted of impaired driving. His lawyer launched a Charter challenge, stating that Therens had been detained at the police station and refused his right to a lawyer, as guaranteed in Sect. 10 of the Charter. The Supreme Court agreed and overturned the conviction, stating that the test results were wrongly obtained, and sending the message out that Charter rights had to be respected when obtaining evidence. The Charter also gives courts the role of prescribing remedies when rights are violated
THE COURTS In Canada, many individuals have pressed for legal reform using the court system by challenging the constitutionality of laws they believe infringe or violate the rights and freedoms of Canadians. If the courts declare a law to be unconstitutional, the law is no longer valid, and Parliament is given the opportunity to write new legislation that does not do so.
Sue Rodriguez appealed to the Supreme Court of Canada to repeal Section 24 of the Criminal Code which made it illegal to help another person commit suicide, arguing that it infringed on her right to security of the person under Section 7 of the Charter. …Although the Supreme Court ruled 5 - 4 against her petition, the split indicated this issue was, and still is, a source of controversy in Canadian society.
Richard Sauve, convicted of 1 st degree murder and in prison for life, challenged Section 51(e) of the Canada Elections Act which denied prisoners the right to vote, stating that it violated Section 3 of the Charter. …The Supreme Court agreed, and although the government tried to rewrite the law so that it only applied to those in federal penitentiaries, Sauve once again challenged it and won. Prisoners are now allowed to vote.
THE GOVERNMENT The elected legislature has the constitutional authority to make law and is the chief instrument of law reform. …A bill becomes a law when it has been enacted by the legislature and has received royal assent. …The Law Commission of Canada was established by the government to review Canadian laws and determine whether they meet Canada’s needs, or need to be changed.
ASSIGNMENT 1. How does a Bill of Rights or a Constitution make legal change easy? 2. What is necessary for judges in a democracy to be able to effect legal change? 3. Give a practical example how each of the following led to a change in Canadian law: a) demographics b) technology c) social attitudes d) national emergencies e) globalization 4. Note who can change laws in our system