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Lecture

POLI 101- November 9.docx

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Department
Political Science
Course Code
POLI 101
Professor
All

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THE CHARTER Wednesday, November 9 NOTE: Midterm Grades on Vista (if you haven’t received your hard copy) Mark is recorded as a number out of 35. Double check to make sure the percentage on your midterm corresponds with this number Charter Review - Canadian Charter is a „Modern Bill of Rights‟ - There are limitations to the scope of rights (not absolute) - Sections 1 and 33 outline limitations - Give legislature the authority to limit them - Section 33 tool: Can write laws that do not have to adhere to the Charter (rare) - Section 1 tool: Limits rights reasonably, providing the standard of democratic society is met Notwithstanding Clause (Section 33) - Legislation can operate notwithstanding or in spite of Charter rights - Applies to section 2 and section 7-15 - Protects legislation from charter - Included to protect system where there was no limit to legislature power - Based on the belief that the legislature is the best judge of own limits - Sections such as section 28 (Gender equality) are not subject to notwithstanding clause - No legislation can be immune from certain Charter provisions - Fundamental freedoms and legal rights all subject to the notwithstanding clause - Use of notwithstanding clause - Legislature has to explicitly authorize use - Notwithstanding clause can only be applied to legislation for periods of 5 years - If legislature wishes to continue immunizing a legislation from the charter rights, they must renew the notwithstanding clause after it expires - Within a period of 5 years there will inevitable be an election, and a new government. The time limit on the notwithstanding clause means that the electorate has the opportunity to comment on the use of the clause, and if they deem it unacceptable can vote out the government that used it (election battle!) How to use Section 33 (Notwithstanding) (1) Can be used preemptively - Creates „Charter-proof legislation‟ - Included in legislation to ensure there will no be rights challenges (2) Can be used after a rights challenge to a piece of legislation - If the courts find legislation unconstitutional, the legislature could re-pass the same piece of legislation invoking section 33 in order to override the courts‟ ruling Reality of Section 33 (Notwithstanding) - Section 33 has only been used 3 times in history - Lack of use makes the clause a sort of „dead letter‟ - Governments will often not use it as it may appear they have no respect Charter rights - The backlash from the population would hurt their ability to win future elections - Use is seen as illegitimate (1) 1982: Quebec applied this clause to all future legislation (blanket use) - Preemptive use (2) 1988: Saskatchewan - Wanted to limit union charter appeals on legislation that would legally force workers back to work in certain strike situations - Preemptive use (3) 1988: Sign law in Quebec - Limited the use of English on signs to protect use of French language - Preemptive use Reasonable Limits Clause (Section 1) - States that all rights and freedoms and rights are subject to “Reasonable limits prescribed by law as can be demonstrably justified in a free and democratic soci
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