Lesson 1 Inquiry
Completion requirements
Inquiry
Why do laws change over time?
Laws change for the following reasons:
Common law based on traditions, began with Britain in approximately 1066 CE, and has been used in Canada since its foundation. Common law means the laws are not written down. Judges apply common sense and knowledge of legal precedent to the cases before them. Law is established by following earlier judicial decisions or tradition. In other words, in the past, people measured their choices and behaviour by prior standards.
Customs are long-established ways of doing something. Over time, they become law for example, a shortcut across private property to beach is a custom that may become a right of access.
Conventions are ways of doing something that have been accepted for so long that they become unwritten rule for example, the Governor General is now always a Canadian citizen.
Changes to the way Canadians thought about law making began in the early 1980s. In 1980 and 1981, Prime Minister Trudeau began the process of patriating Canada's Constitution (removing it from Great Britain and bringing it to Canada). Now, the power to change the Constitution rests with Canada rather than with Great Britain.
Pierre Trudeau asked Jean Chretien (justice minister and later prime minister) to craft the Charter of Rights and Freedoms so it could be added to the Constitution. When Trudeau tried to pass a Constitutional Amending Formula (process for how to change the Charter) through parliament without consulting the provinces, provincial premiers said that convention (usual political practice) was not being followed. They challenged Trudeau in the Supreme Court.
There were three key concerns about the Charter: one, that it would give courts and judges too much power to interpret its meaning; two, that it would it be difficult to change once it was in place, and three, it would increase the power of the federal government.
Quebec did not agree to the Charter and has not signed it. The other provinces signed it. Only Alberta and Quebec have challenged the Charter by evoking the notwithstanding clause which exempted them from a section of the Charter for five years.
Since that time the Charter has been applied in thousands of court rulings across the country. Significant changes have been quickly made to society. This is because individuals and lobby groups (groups which take collective action) can appeal a decision up from the lower courts to the highest court (the Supreme Court). This can change case law (common law) or the interpretation of legislation. The Charter's influence occurs not only through the courts, but guides laws and policies that are Charter-compliant as well as provincial education systems. It is the most influential document in Canada today.
Another reason changes to laws occur so quickly is because of judicial activism. In the past, judges followed the interpretation of currently existing laws. Now, some argue, they may make changes by basing their rulings on personal and political thought. Judges make independent decisions that change the country socially and legally when they interpret the Charter's meaning. Some say this damages the very purpose and foundation of law and democracy. Laws made for one situation that do not apply to another situation become incoherent or unclear. Others say this creates necessary discussion in society and that Canada's constitution has made it a trend-setter in the world.
Overall, judicial independence, the idea that judges function independently of the government that appoints them (they cannot be fired for an unpopular decision) is foundational in a democracy. This is a key Canadian value.
- a change in population such as women joining the workforce in the 1960s and 70s
- a change in technology such as the Internet
- a change in values such as anti-smoking bylaws
- a national emergency such as a war resulting in Conscription
Changes in Values
Common law based on traditions, began with Britain in approximately 1066 CE, and has been used in Canada since its foundation. Common law means the laws are not written down. Judges apply common sense and knowledge of legal precedent to the cases before them. Law is established by following earlier judicial decisions or tradition. In other words, in the past, people measured their choices and behaviour by prior standards.
Customs are long-established ways of doing something. Over time, they become law for example, a shortcut across private property to beach is a custom that may become a right of access.
Conventions are ways of doing something that have been accepted for so long that they become unwritten rule for example, the Governor General is now always a Canadian citizen.
Changes to the way Canadians thought about law making began in the early 1980s. In 1980 and 1981, Prime Minister Trudeau began the process of patriating Canada's Constitution (removing it from Great Britain and bringing it to Canada). Now, the power to change the Constitution rests with Canada rather than with Great Britain.
Pierre Trudeau asked Jean Chretien (justice minister and later prime minister) to craft the Charter of Rights and Freedoms so it could be added to the Constitution. When Trudeau tried to pass a Constitutional Amending Formula (process for how to change the Charter) through parliament without consulting the provinces, provincial premiers said that convention (usual political practice) was not being followed. They challenged Trudeau in the Supreme Court.
There were three key concerns about the Charter: one, that it would give courts and judges too much power to interpret its meaning; two, that it would it be difficult to change once it was in place, and three, it would increase the power of the federal government.
Quebec did not agree to the Charter and has not signed it. The other provinces signed it. Only Alberta and Quebec have challenged the Charter by evoking the notwithstanding clause which exempted them from a section of the Charter for five years.
Since that time the Charter has been applied in thousands of court rulings across the country. Significant changes have been quickly made to society. This is because individuals and lobby groups (groups which take collective action) can appeal a decision up from the lower courts to the highest court (the Supreme Court). This can change case law (common law) or the interpretation of legislation. The Charter's influence occurs not only through the courts, but guides laws and policies that are Charter-compliant as well as provincial education systems. It is the most influential document in Canada today.
Another reason changes to laws occur so quickly is because of judicial activism. In the past, judges followed the interpretation of currently existing laws. Now, some argue, they may make changes by basing their rulings on personal and political thought. Judges make independent decisions that change the country socially and legally when they interpret the Charter's meaning. Some say this damages the very purpose and foundation of law and democracy. Laws made for one situation that do not apply to another situation become incoherent or unclear. Others say this creates necessary discussion in society and that Canada's constitution has made it a trend-setter in the world.
Overall, judicial independence, the idea that judges function independently of the government that appoints them (they cannot be fired for an unpopular decision) is foundational in a democracy. This is a key Canadian value.
Consider these questions as you complete your inquiry:
- What were Canadian values in the past?
- What made people change their values?
- How much change in values has occurred over time?
- How does the Charter reflect our values now?
- Are our values still changing?
Resources for Inquiry
- Textbook
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Read page 156 of your textbook to learn of some laws that were made in Canada in the past that we now consider unfair and undemocratic.
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Read page 157 of your textbook to learn why people in Canada thought these laws were acceptable at the time, and how attitudes started to change.
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Read pages 158 and 159 of your textbook to learn some steps in our history that led to passage of the Charter of Rights and Freedoms as well as a review of the rights the Charter ensures.
- Websites
- Read pages 131- 132 of the Nelson text for more examples of how laws change over time as values change.
- The Right To Vote
Notebook
When you feel confident about the information you explored in this inquiry, complete the Lesson 1 Self-Check on the following page.