POLI 324 Lecture Notes - Lecture 3: Patriation, Judicial Activism, Institute For Operations Research And The Management Sciences
15 Jun 2018
School
Department
Course
Professor
POLI324
Class September 20th
Designing the Charter of Rights and Freedoms
Introduction
• A parliament-centred perspective is developed that focuses on the constitutional and political
events surrounding the evolution of the draft Charter:
1980
the presentation of a WEAK draft Charter to Parliament.
1982
the entrenchment of a drastically amended and STRENGTHENED Charter.
Significance
• It is important to understand the political events surrounding the entrenchment of the Charter
before considering the judicial approach to the Charter.
Why?
To argue that an actiist fraers’ itet informs the Charter that legitimizes judicial activism by the
Supreme Court of Canada.
Lecture Outline
1. Constitutional Politics and the Charter
the importance of unilateral patriation as a political strategy.
2. The Evolution of the Draft Charter
from a meek document to a substantive document.
3. Fraers’ Itet
hat did the faes ited ad should the outs e oud to it?
1-Constitutional Politics and the Charter
• The Chate of ‘ights is assoiated ith Tudeaus deisio to uilateall patiate the
constitution.
• A political strategy to overcome provincial resistance to his attempt to patriate the Constitution.
• Revealed a paradox in the process exploited by Trudeau:
• constitutional authority versus process
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find more resources at oneclass.com
Constitutional Paradox
Authority
Practice
• Only the Parliament of Canada had the
legal authority to request changes to the
BNA act 1867, by the Westminster
Parliament
Examples
• British North American Act 1940
(unemployment insurance)
• British North American Act 1951
(pensions)
• Formal requests for changes to the BNA
act 1867, by the Parliament of Canada
affecting Federalism and provincial
interests only occurred after first
securing unanimous provincial consent
Constitutional Stalemate in 1980
• The need to secure provincial consent resulted in the creation of a very weak Charter of Rights,
marginally better than the Canadian Bill of Rights.
• Despite its weak status, by August 1980, the premiers would only agree to a minimal Charter
that included:
o Fundamental freedoms
o Democratic rights
o Legal rights
Unilateral Patriation
• The need for provincial consent had been accepted by the Trudeau government during the
summer of 1980.
• Led to a constitutional stalemate unable to be resolved by the agreed constitutional rules.
October 2, 1980
Trudeau announced the federal government had the constitutional authority to unilaterally patriate the
BNA Act, 1867.
Parliament and the Charter
• Unilateral patriation is significant because it changed the substance of the Charter, and changed
the conditions for approval – unanimity (FMC) to majoritarianism (SJC).
Pre-October 1980
o eeutie fedealis ad Fist Miistes Cofeees FMC.
Post-October 1980
o the Special Joint Committee on the Constitution of Canada (SJC)
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find more resources at oneclass.com
Principles of Agreement
Executive Federalism
Special Joint Committee
• Premiers have a dominant role in
constitutional changes.
• Agenda focused on changes to the
division of powers and not the Charter of
Rights.
• Principle of unanimous provincial consent
prevent acceptance of Charter
• Parliamentarians replace Premiers as a
significant actor in constitutional
changes.
• An increased role for citizens and groups
advocating for rights and freedoms.
• Liberal majority on SJC key to its passage.
2-The evolution of the Draft Charter
• The process of executive federalism had produced a weak Charter that reinforced the principle
of parliamentary supremacy as a concession to provincial agreement.
• Unilateral patriation, at first, did not change the content of the draft Charter of Rights.
• The substance of the draft Charter changed once citizens appeared before the SJC.
The Special Joint Committee
• Trudeau government was originally reluctant to televise the proceedings of the SJC.
• Original time-frame – SJC would review the draft Charter for one month and report to
Parliament.
• Amended time-frame – 6 months required because of large public response:
o 104 groups and individuals made presentations.
o 106 meetings held by SJC over 56 days.
o 267 hours of televised proceedings required.
Citizens and the Charter
• SJC is a turning point because of the high level of citizen participation in constitutional design.
High level
o support for the concept of entrenched rights.
Low level
o support for the draft Charter produced by the institutions of executive
federalism.
Evolution of the Draft Charter
• The substantive evolution of the Charter can be evaluated by looking at two important drafts
submitted to the SJC:
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Introduction: a parliament-centred perspective is developed that focuses on the constitutional and political events surrounding the evolution of the draft charter: The presentation of a weak draft charter to parliament. The entrenchment of a drastically amended and strengthened charter. It is important to understand the political events surrounding the entrenchment of the charter before considering the judicial approach to the charter. To argue that an acti(cid:448)ist fra(cid:373)ers" i(cid:374)te(cid:374)t informs the charter that legitimizes judicial activism by the. Practice: only the parliament of canada had the legal authority to request changes to the. Examples: british north american act 1940 (unemployment insurance, british north american act 1951 (pensions) Formal requests for changes to the bna act 1867, by the parliament of canada affecting federalism and provincial interests only occurred after first securing unanimous provincial consent. The need for provincial consent had been accepted by the trudeau government during the summer of 1980.
