PHILOS 1B03 Lecture Notes - Lecture 6: Section 33 Of The Canadian Charter Of Rights And Freedoms, Pass Laws, Peter Hogg
21 Apr 2016
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Guest speaker: grant huscroft judicial review and constitutional rights. Problem: rights are the subject of reasonable disagreement in the community. Charter rights are vaguely worded majestic generalities . Countermajoritian critique: courts are not democratic institutions, undemocratic judges overturning democratic laws, judicial review runs counter to the majority. Tyranny of the majority: flip side of countermajoritarian, want to constraint majorities, judicial review is a check on tyranny of the majority. Strong court can declare laws inconsistent and so valid ( strike down ) (us) Judicial decisions can be overcome by amending the constitution (only way in the us after judicial review) Court can declare inconsistency (uk, nz) but must apply the law. Inconsistency only addressed if legislature chooses to amend or repeal the law. Uk experience declaration almost invariably followed. Court can declare something inconsistent and invalidate it. But legislature may reverse decision with ordinary legislation. No need to amend the constitution (7/50 rule for amendment)
