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POLI 221 (195)

The Courts

4 Pages

Political Science
Course Code
POLI 221
Christa Scholtz

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The Courts Lecture 1 November-06-12 10:06 AM -1960: Bill of Rights. Ordinary statute applying only within areas of federal jurisdiction, but most claimants under the bill of rights did not win their cases between 60-82. Did not have enough support to see Queen and have it entrenched. Ineffective: Courts didn't give it enough force. Only validation: Indian Act. -1982: Charter -Canada's judicial system incorporates American and British standards. -Various views of the courts: See slide -Section number 1, 15, 33, 24 (important) -Pre-amble to BNA act: Canada should have a constitution similar to the UK. Meaning Parliamentary sovereignty. Parliament makes laws that the courts then enforce. To say whether individuals or govt has acted unlawfully. Courts not involved in judicial review or striking down/validating these laws. Parliament (not court) has the last word in that it can rewrite its laws. In terms of civil liberties, courts have a role to play. Parliament has the right to deny or remove these civil rights. -US: Written, entrenched constitution. Any acts deemed unconstitutional can be invalidated/struck down. Congress has the choice to pass another law, but this legislation can be struck down by the court. -Canada: A mix. Before 1982=parliamentary sovereignty, but also entrenched constitution. Under BNA act, there is also a role for the courts to strike down laws with respect to federalism if they are found outside of the scope of S.91 and provincial laws outside of scope of S.92. Exceptions: S.93=collective rights , S.133=use of English and French. -Civil rights does not refer to civil liberties (like speech). It's an older term referring to private law. Ex one person is entitled to something of another. Ex: property rights. -If the fed govt wants to pass legislation confining freedom of speech, they can do so unless the courts find that it is not within the scope of S.91. -Courts have a relatively constrained role. 1960 -Diefenbaker wanted to introduce a bill of rights, however his assessment of politics was that he did not have the support of provinces to amend the BNA act to include this bill of rights. Plan B was to introduce a bill of rights, pass it, get a federal statute that would apply strictly to fed govt, not prov. Bill of rights still exist (not repealed in 1982). Most of what is in the bill of rights was done in the charter. General conclusion as that it was ineffective because the courts didn't give it much force because it was an ordinary statute and the courts were uncomfortable that this ordinary statute could be used to override other statutes. -1979: Bliss decision. The supreme court reversed decision of pregnancy discrimination was gender discrimination under the charter. -Prior to 1982: The supreme court of Canada was described as a quiet court in an unquiet country. Given the scope, deference, the action (in the hands of parliament). Interests groups less inclined to pursue interests within court. -1982: Constitution act. For the courts: -s.52(1): supremacy clause. Courts have clear mandate for judicial review outside of S.91 and 92. The charter applies to both fed and prov govts. Larger scope for judicial review (beyond 91 and 92). Expansion of issues. -What is the Charter? What is it? -S.1=guarantee. Rights are guaranteed but there are limits. The courts have a lot of discretion in determining these limits. -S.2=fundamental freedom -S.3,4,5: Right to vote -S.6=Mobility right (come in, leave, move within Canada) -S.7=Legal rights. Everyone has right to life, liberty and security. -S.15=equality rights. Every individual has equal rights. No race/gender discriminations. Equal benefit of law. -S.23=Minority Language education rights. -S.24: Similar to 52 (supremacy clause). The charter has its on remedy clause that applies to provision within charter. Anyone whose charter rights and freedoms have been infringed/denied may apply to courts for remedy. It is up to courts to decide what that remedy is. It can also oppose a remedy. -S.28: notwithstanding anything in charter, rights are guaranteed equally to man and woman. Why do you need 28 when you have 15? Because of S.33(notwithstanding clause. Says the parliament of legislature of province may declare that if there is an infringement in S.2 or 7-15 (includes legal right and equality rights) then the legislatures of parliament can pass an act saying that this infringement will continue despite what the court says). Judicial review subject to parliamentary review. You need 28 because it puts gender rights important outside of S.33. Only women rights (not ethnic, religious etc.) due to women lobbying. -Key aspects of charter: -mix of individual (freedom of conscious, religion) and collective rights (minority language education rights, official language rights...more cultural rights, allow them to take care of their interests) -Rights under charter are not absolute. How is it still called a right? What's its value? It is central to charter that rights exists but can conflict other rights. Ex: right of expression can conflict with rights of security. Charter provides a mechanism for how these rights can be limited.. -In 2 ways: S.1: if there is a finding by the
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