POLS 2300 Lecture Notes - Section 33 Of The Canadian Charter Of Rights And Freedoms, Final Analysis, Charter Of The French Language
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Pols 2300: Chapter 6: Rights and Freedoms
←In reality, no right or freedom is absolute, there is two reasons:
ONE : rights and freedoms may collide necessitating some compromise.
←Holmes established the ‘clear and danger test’, according to which freedom
of expression could legitimately be curtailed when it posed an unmistakable and
immediate danger to others. Falsely shouting ‘Fire’ in a crowded theatre obviously
endangers the safety of those in the room.
TWO: because it is impractical. Common sense suggests that there are limits to
how far and in what circumstances the principles of linguistic equality and minority
rights should apply.
Section 1 of the charter states that these rights and freedoms are subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society, and section 33(1) enables either parliament or a provincial
legislature to declare that a particular law or provision of a law shall operate even if
it violates rights or freedoms. Together, section 1 and 33 operate to maintain some
measure of parliamentary supremacy over the courts and the charter.
Rights and Freedoms, are therefore, water tight compartments in reality. Rights for
those individuals and group entitlements that are considered so fundamental to
human dignity that they receive special protection under the law and usually under
the constitution of a country.
Freedoms involve an individuals liberty to do or believe certain things without
restraint by government. Whereas the defense of rights often requires some
government action, the protection of freedoms requires that government refrain
from interfering in matters. Rights suggest an active role for government, freedoms
a limited one.
Civil liberties or civil rights are terms sometimes used to refer to all the basic rights
and freedoms of citizens. Under the Universal Declaration of Human Rights the term
human rights has become the more commonly used designation for this bundle of
rights and freedoms, included among these are the following:
•Political rights/fundamental freedoms: include the freedom of association,
assembly, and expression.
•Democratic rights, among these are the right to vote
•Legal rights, the essentially are procedural rights intended to ensure the
fair and equal treatment of individuals under the law. They include inter
alia the right to due process of law.
•Economic rights, they include the right to own property.
•Equality Rights, every persons right to equal protection of the laws of the
proscribed bases of race, religion, age, gender, and ethnicity, Canada’s
charter also includes mental and physical disability and sexual orientation
←Language rights, Environmental rights, and other group rights such as
religious minorities and native peoples may also be protected by the law. Some
argue that social rights or entitlements including the right to a job, economic
security should also have a status entrenched in our constitutional rights.
←This has produced some curious distortions, as the protagonists to a political
conflict attempt to fit their claims into categories available under the Charter and
the interpretative tendencies of judges. Michael Mandel refers to this process as the
legalization of politics. Which inevitably favors established interests and serves to
reinforce that status quo because of what he and other critics claim to be biases
built into the law and the legal/judicial profession. But the legalization of politics
does not express strongly enough the deformation of politics that the Charter has
encouraged. This deformation is not limited to economic conflicts. The court party
have been far more successful than so called establishment interests in using the
Charter to win political victories.
←The Origins and Meanings of Rights
←Rights come from political struggles, a claim made by an individual or group
will be expressed as a right only when it is denied or placed in jeopardy by the
words or actions of some other party.
←Political struggle is a necessary condition for rights claims to be recognized
as legitimate a rights claim must be successfully linked to one or more of a society’s
fundamental values. These fundamental values operate as limits on rights
discourse. For instance, abortion those who argue to abort her pregnancy when she
chooses have often linked this rights claim to individual freedom of choice, a
fundamental value in liberal-democratic society.
←Behind these rights, rests one or more fundamental values, such as the
equality of human beings the autonomy of the individual, and most importantly the
nature of the good society.
←But there may be unintended consequences to fitting a groups objectives into
the available framework of rights discourse and the concepts and interpretations
that the legal system provides. First the issue may be misdefined law is only one of
the possible means through which such matters as gender relations, energy
consumption, lifestyles, and many other issues may be regulated. They may also be
regulated by social norms, by institutions such as the family, churches, the media,
and schools and by processes such as the market.
←But reliance on the law may not always be the beast solution from the
standpoint of efficiency, fairness, durability, general public satisfaction, or other
criteria that we might consider important.
←Rights and Their Protection
During the 1980 debate critics of en entrenched charter of rights warned that
entrenchment would lead to the Americanization of Canadian Politics, which it has.
The Americanization has two main aspects:
One involves a more prominent policy role for unelected judges and a related
decline in the status of elected legislatures. The other is an increase in recourse to
the courts to solve political disputes. Some of those who opposed entrenched rights
argued that rights and freedoms are better protected by elected legislatures. By
‘better’ they meant that the decisions of electoral politicians are more likely to
correspond with the sentiments of citizens.