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CRIM 135 (165)

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CRIM 135
Graeme Bowbrick

TOPIC #5 – THE CANADIAN CONSTITUTION (PART 2) III. Negotiating Constitutional Change 1. Historical Context • For about 15 years mid to 1960s – 1981/82 on and off constitution negotiations took play • At First Minister’s Conferences • Premiers would get together to have constitutional conferences • Problem: very difficult to reach everyone’s agreement o Leading priorities  Sending out – clear amending formula  Patriation: our constitution should be 100% our own, any changes from constitution would be make from our own domestic processes, in our own country 2. The Amending Formula Impasse • Major tension: disagreement what is the necessary amount of agreement and the form of agreement to reach that constitutional amendment? o Ex: necessary for federal government to agree with provincial government? Would we need a super majority? Or a unified decision? o Problem: No clear amendment formula, need to go through the British parliament for amendments  Solution: Amendments only applicable if agreement of federal government and 10 provinces – another problem: population density? Unfair?  By September 1980- no deal has been reach • Solution: bring the amendments to British parliament for them to pass and it will be in our constitution?  1981- Supreme Court asks: how much provincial agreement required for agreements? – Substantial majority required. What does that mean?  1981 final attempt – federal government + 9/10 provinces: Quebec didn’t agreement, “ kept dreaming about independent government” (separatist government) 9/10 counts as substantial majority: and changes proceeded even with Quebec’s agreement – even until this day, Quebec never signed on to these changes  April 17 th1982- royal assent given by Queen Elizabeth to constitution act, 1982 IV. The Constitution Act, 1982 1. Introduction • Does not replace constitution act of 1867 • Expansion of our constitution • About 52 sections, divided into 7 parts 2. The Charter of Rights and Freedoms (part 1 of the constitution: sections 1-34) • Purpose to protect rights and freedoms of Canadians • Reasonable limits – “reasonable” decided by judges (a)Section 1: Limitation Clause – telling us we have these freedoms, but subject to limits • Protect against government actions, not against non governmental actions (not your neighbour) • Underlying theory: No right is absolute o Absolute right: “saying whatever we want, without government having any say” o Government cannot violate laws: we have a free and a democratic society  If government wants to succeed under section 1: arguing what they’ve done was a reasonable limit, they’d have to do the Oakes test • The Oakes Test 1986– a test proposed by the judge, to test if your reason is reasonable o They would use the Oakes test every time the charter is argued in cases (passed by supreme court – precedent) o 4 stages of Oakes test: government must pass every single part to win the case, cannot just pass one 1. Sufficiently important legislative objective (addressing a “pressing and substantial concern”) • Needs to have a very good reason for limiting the right 2. Rational connection 1 • What is the rational connection between the charter violation/ achieving that important objective? • Must demonstrate how limiting the charter right allowed you to achieve that objective 3. Minimal impairment (of the Charter) • If the government limited the charter right in the most minimal way possible (doesn’t need to take away more than it needs to) • Needs to show their respect for the charter and yet achieving their objective 4. Overall balance (between effects of the measure, and the legislative objective) • Court steps back and take a bigger picture view – trying to balance the situation • Balancing act between the good and the bad, w
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