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POLI 101- November 16.docx

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Political Science
POLI 101
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CHARTER Wednesday, November 16, 2011 Review: Charter of Rights and Freedoms - Charter balances power between the judiciary and legislature - Some question whether the Charter gives the judiciary or legislature more power - Question is partially solved through the Oakes test - Oakes test asks the questions (1) Is the purpose of limiting rights pressing and substantial? (2) Are the means of the violation proportional and rationally connected to the outcome? Does the limitation minimal impair the right? Flowchart: Is the Limitation on Rights Constitutional? (1) Real claim  Violation Proven  NO  Constitutional (2) Real claim  Violation Proven  YES  Reasonable Limits  NO  Unconstitutional (3) Real claim  Violation Proven  YES  Reasonable Limits  Oakes test (both must be passed)  NO  Unconstitutional (4) Real claim  Violation Proven  YES  Reasonable Limits  Oakes test (both must be passed)  YES  Constitutional - Not difficult to prove right has been violated in the first place - Any law prohibiting freedom of speech IS a violation of freedom of speech - Important to note that limitations on rights are sometimes justified! - EG. BC government created legislation to limit what 3 parties can spend during elections on advertising etc. The court ruled that this law minimally impaired the right to spend, and the limitation may persist (means found proportional) Deference - Courts are deferential to Parliament on questions of purpose, less so on means - Not likely to challenge the purpose of legislation (assumes that the legislation can judge whether a restriction has a purpose or not, and whether the purpose is pressing and substantial) - Challenges arise because of the means test more frequently- what the legislature has done to achieve the purpose of a restriction - Challenges whether the right can be more minimally impaired/restricted and more proportional - Deference introduces the notion of dialogue between the judiciary and legislature - Provides a chance to make alterations to legislations to better serve the citizens - Through dialogues the institutions can learn from one another, and modify their behavior accordingly - As courts are appointed, not elected like the legislature, they are responsible to the constitution as opposed to an electorate. This allows them to approach violations for a different perspective than politicians - Prior to legislation being passed/defeated, legal experts in government are able to tailor it according to where courts might/might not allow limit on a right to exist - Example of anticipatory dialogue as opposed to responsive (Deference port rights challenge) ELECTIONS Wednesday, November 16, 2011 Overview - Section 3 of the Constitution guarantees the existence and scope of elections and the right to vote - Speaks of the democratic nature of Canada - We elect our government indirectly through MPs - Voting the biggest action of democratic right - Elections are the democratic linchpin for responsible government, as they provide government with legitimacy - Election results are the base for government building: Legislative and executive braches of government are populated according to results Theories of representation - Function of elections: Provide regions with representation in the House of Commons - Selects representatives - Three possible theories of how representatives are viewed/chosen (1) Delegate representation - Someone who is intended to faithfully transmit/execute what the people that chose him/her want (constituents) (2) Trustee representation - Constituents entrust choices to the representative - Allows representative to vote as they see fit (with the best interests of constituents in mind) - Constituents choose someone who they can trust, and whose judgment they are confident in (3) Party representation - Chooses representative based on party affiliation - Constituents believe that representative will vote in line with part
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