Chapter 1 — Canada’s regime principles
Regime: a form of government and it’s underlying political principles. The institutions of a regime will be based off of the
i.e. A democracy will have political institutions based upon democratic elections.
Aristotle ➞ how do rulers understand the purpose of their rule?
1. Are the rulers just (rule for everyone) or unjust (rule for themselves)?
2. How many people rule?
Aristotle’s 6 regimes:
Kingship: one rules with the interests of their country and citizens
Tyranny: one rules with only their interests in mind
Aristocracy: few rule for the common good
Oligarchy: few rule to further their wealth
Polity: many rule for the common good
Democracy: many rule, resulting in mobocracy (usually the poor try to despoil the rich)
Tyranny of the majority: Results from majority rule where decisions made usually come at the expense of the minority [so even
though it is democratic, it could be unjust i.e. US lgbt laws].
Democracy’s key “regime principles”
Equality: political power is granted to all citizens equally (i.e. We can all run for office), and whoever is elected is accountable to
the people. Political equality does not mean social or economic equality.
In a direct democracy, all citizens are directly involved in political decisionmaking as they are all perceived as being equally
capable. Any special officers are chosen at random.
In representative democracy, political matters are given to a small group of elected representatives. This is done for 2 reasons: 1)
modern democracies are too big for direct rule, and 2) candidates now have to convince the pop’n that they are the best person for
the job. These representatives would be accountable to the people through elections and this would keep the regime democratic
and not mobocratic.
Parliamentary democracy is a type of limited form of representative democracy, where political decisions are made by Parliament,
who are elected by the people. The PM is selected from Parliament (in theory, by the Crown), and the Crown has final reserve
powers (in times of leadership crises or if gov’t is deadlocked).
The US has a republican regime, where full and final authority is given to the people’s elected reps.
Liberty: the idea that there is a private sphere where we have the right to make our own choices, provided that there is no law
against it. I.e. Freedom of religion, of ideas.
Those in the natural rights school believe that everyone possess inherent, inalienable rights (“human rights”) that the gov’t must
never violate and must do their best to protect and secure these rights.
Utilitarians believe that rights are important so long as they promote happiness (it’s worth depends on it’s outcome). They do not
believe in inherent and universal rights, but only those created within each regime depending on the situation (i.e. Will the right to
education benefit everyone?). If yes, then implement it, but this does not mean it is a right that all governments, regardless of
time and place, must provide their citizens. They did believe that the expression of rights should be guided by certain rules
though, like the harm principle — gov’ts can’t interfere with others if their actions aren’t harming others.
In politics, this means that: 1) gov’ts who pass laws limiting our freedom must justify themselves, and 2) these laws are valid only
if they prevent direct harm to other people. I.e. This is why drinking isn’t illegal but drunk driving is.
3 general principles of a liberal democracy’s rights:
1. Protection of the private sphere: the public sphere are those areas where governmental regulation is necessary to protect the
rights of everyone (driving, arms ownership); the private sphere includes everything else, and the government should not
interfere in this area.
2. Respect for minority rights: those in power must secure equal protection for the minority, who should not be discriminated
against based on race, religion, or other politically irrelevant traits. (The first minority rights were guaranteed in the CA 1867, of minority religious education rights, and of the official bilingualism of Canada. The CA 1982 goes further, recognizing
Aboriginal and other groups’ rights and ensuring their legal rights among others.)
3. The rule of law: no one is above the law, the law is applied to all government and persons equally and impartially. Any gov’t
action must have a sound base; they cannot act because they feel like it.
Liberal democracy is a belief in political equality and genuine competition between political parties. Our gov’t protects these
principles through responsible gov’t, federalism, and the Charter.
Ch 3 — responsible government
Montesquieu, a philosopher, believed that the best way to prevent the abuse of political power was to assign the legislative and
executive powers of gov’t to separate bodies (separation of powers), as one needs both to rule. This principle was eventually
replaced by responsible gov’t, where the executive is held responsible for it’s actions to the elected legislature.
5 conventions of responsible government
1. The crown is a figurehead — it’s powers are delegated to a ministry of elected MP’s [democraticlike]
2. The Cabinet must be mostly composed of MP’s so it’s easier for other MPs to reach and question Cabinet members (CM). Any
CM’s who aren’t MP’s must run for a seat; if they lose they must resign.
3. All ministers act as a team to develop and implement policies; they all share responsibility for the decisions made by any one
minister (collective responsibility). As such, any policy must gain the support of all members before going to HoC. Ministers
who disagree with the decision resign.
4. Ministers must maintain the confidence of (support of) a majority of the HoC.
5. If the ministry loses the House’s confidence, either the PM must resign (thus disbanding Cabinet), and a new ministry must be
formed that has the House’s confidence, or the PM must request new elections in which case the voters may elect MP’s who’ll
support the gov’t or MP’s who’ll support the House.
Responsible government as “Cabinet government”
Although responsible gov’t is referred to as parliamentary government (where the HoC’s is the ultimate authority), it is more
accurate to refer to it as Cabinet gov’t because the principle of resp. gov’t actually strengthens the Cabinet. This is because the
Cabinet, since they are made of MP’s who practice party discipline and must maintain the House’s confidence, are able to control
the legislative agenda of the House (Cabinet MP members can count on the support from a majority in the house for any bills they
propose because the MPs in the HoC don’t want to risk defeating the gov’t and losing their jobs).
Thus, some define responsible government as a regime in which the legislative and executive powers are fused together in a
Cabinet that is accountable to the elected House representatives.
Forming a government
Responsible gov’t is inconsistent with the notion of directly electing the PM because the PM cannot be responsible to both the
House and the people (incase they demand contradictory things).
4 conventions for forming a government:
1. The crown chooses the PM, who will nominate the other members of government (cabinet?)
2. The crown must choose the person who’s most likely to have the confidence of the HoC to be the PM
3. The gov’t remains in power until the PM resigns on it behalf
4. The PM must resign if his/her gov’t loses the confidence of the House and has no chance of winning the confidence of a newly
Key differences between Canadian and US regimes
The adoption of responsible gov’t as a fundamental principle means that the presence of institutions that accompany this principle
will have opposites that are ruled out by this principle. This is one of the reasons why we can’t adopt American principles. Key
1. The timing of elections: the US has fixed election times and office terms. In Canada, the GG calls elections, but it is made on
the “advice” of the PM (which is almost always followed). Thus the PM can call elections when it is most favorable for him
to do so (they must call one before 5 years though).
2. Cabinet membership: in the US, Cabinet members cannot be members of Congress. If they are, they must resign their seat in
congress. This allows the President to choose any of the most talented in the US to fill Cabinet roles. In Canada, the PM is
limited to the MP’s, who may or may not have expertise in the area for which they will be responsible. 3. Head of gov’t and head of state: in the US the president serves as both. In Canada, the GG is the head of state; it is their job to
oversee the PM and House to ensure that the PM maintains the confidence of the house, and to make sure a new PM will
replace the old if they lose the confidence.
4. Party discipline: much stronger in Canada (most MP’s vote with the party). In the US, they vote according to their
constituency (the President does not need the confidence of the House since he/she is directly elected). Canada’s democratic
legitimacy depends entirely on the confidence of the House.
Comparing responsible government and separation of powers
The idea behind the separation of powers is one of liberty and of minimizing the chances of tyranny. The idea is that as long as
powers are being fought for between 2 groups, they are not likely to join together to perform tyrannical acts. However, it often
leads to standstills in gov’t, making it inefficient.
The idea behind responsible government is the fusion of powers (some small group exercises legislative and executive power),
where standstills do not take place because as long as the Cabinet is backed by a majority of MP’s, they can do almost anything.
Some say it’s more efficient, some say it sacrifices liberty.
However, regimes based on responsible government are not “elected dictatorships”. All governments seek reelection, so it is
inclined to please the MP’s and people. The gov’t is also subject to the Constitution, and to questions and criticism from the
House of Commons. It is also more accountable in that there is a direct line of responsibility — the PM controls the nation’s
agenda almost completely, so we can blame/praise him.
Ch 2 the Constitution
4 Main functions of the Constitution:
1. To decide who will exercise the 3 types of political power: legislative, the power to make law or policy; executive, the power
to carry out laws; and judiciary, the power to review and interpret the Constitution.
2. To decide the jurisdiction of the federal and provincial (regional) levels of gov’t in a federal system
3. To act as a check on the power of gov’t ➞ by promising rights, the state’s power becomes dependent on popular consent and
are must protect those rights while not intruding upon the private sphere
4. To allow for an orderly way to amend the Constitution, so that it can be updated to reflect the interests of the changing society.
Other constitutional functions:
Describes the basis of political representation (by population, territory, or group), and the method by which representatives are
elected (electoral systems affect who and what party is represented).
In a representation by pop’n system, each person counts as one vote; as such all elected members should represent roughly the
same number of voters (if one rep from B.C represents 15,000, then one rep from P.E.I should too). This means that larger
provinces will trump smaller ones; to counter this regions are represented as well (Senate).
In a representation by group system , certain groups (women, Aboriginals, French, etc.) are given special treatment, such as
being guaranteed a certain number of seats in Parliament for that group only.
2. Community and identity:
With rules that govern political life in a particular territory, constitutions establish a community — all those within the territory
are subject to the same constitution (i.e. B.C and Québec are all Canadians). Sometimes the sense of community is weak, like it
is for Québec separatists; these positive or negative feelings stem from a constitution and it’s institutions, values, and symbols.
In general, a constitution creates a shared identity among citizens when most people have positive feelings towards the political
community it creates and the values it embodies.
Much of the Constitution is unwritten; it exists in conventions. These invincible principles that form the foundation of the
Canadian Constitution are:
Powers assigned to the provincial and nat’l government by the Constitution neither depend on or require the consent of the other
level of gov’t to use; neither gov’ts are subordinate to the other. 2. Democracy
There is a theory that democracy and our rights weren’t written into our Constitution because to the Founders these things were
assumed to be true and obvious. Even if it was written, expectations and understandings of democracy change over time. So
what does Cdn democracy mean today?
• Majority rule, unless the matter in question is refused by the majority of a province affected by it
• Respect for the inherent dignity of every person
• Commitment to equality and social justice
• Social and cultural diversity (respecting minority groups’ social and political institutions that enhance their ability to participate
• Consent of the governed [elected representatives]
Protection of minority rights, Constitutionalism, and the Rule of Law, not of Men, are other impt principles of Canada’s
constitutions ➞ ALSO IMPORTANT PRINCIPLES OF A LIBERAL DEMOCRACY.
Forms of the Constitution
3 main forms:
1. Written documents (laws) ➞ includes both constitutional and normal legislation (organic). The main constitutional ones is the
CA 1867 and CA 1982 (includes amending formulas, Charters, & Aboriginal rights. The division of powers between fed and
provincial are also laid out. Enforced by the courts.
2. Conventions ➞ noncodified rules for managing the political system. Enforced by POLITICS, not legal punishment (the
3. Court decisions ➞ no written document can ever cover all of the possible contingencies (we can’t see into the future,
impossible to know what may happen that needs to be included in the constitution). Plus, there’s always different
interpretations of the same law. Court decision clarify the Constitution and are a key part of the ‘living’ Constitution ➞ the
Constitution is always CHANGING to adapt to society. Before the SC, it was the British court who was the highest, and they
tended to limit Fed’s power by favouring the provincial government. After the SC, this stopped and slightly reversed.
Made Canada a selfgoverning dominion of the British — NOT A STATE. Mixed parliamentary democracy and constitutional
monarchy together, creating a centralized state where Parliament was superior ➞ one level of gov’t could do anything they
wanted as long as they didn’t trespass the other level’s jurisdiction. It recognized linguistic and religious minorities ➞ entrenched
the PRINCIPLE OF MINORITY RIGHTS.
Also gave the GG/LieuGovernor (really the PM b/c GG must act on the advice of the PM) the powers of:
Reservation ➞ lieutenantgovernors can withhold their assent to provincial legislation until the federal gov’t has a chance to look
Disallowance ➞ federal gov’t can void provincial legislation that it dislikes
It is a CONVENTION that the fed gov’t will NOT use these powers now, as it is seen as undemocratic (not a big deal back in
1867, when they believed that the main reason for US’ civil war was a lack of fed power).
Shared powers of fed and provinces ➞ immigration and agriculture (but if they have conflicting legislation, the fed usually wins),
and criminal law ➞ written by federal gov’t but enforced by the provinces. Fed gov’t must take the provinces’ concerns into
account in order to acquire their support!!!
Constitution Act 1982 and the Charter
First time that human rights were given constitutional status in Canada ➞ but there was a rights regime present in Canada before
this (usually accomplished through debates). Sovereignty shifts to the people and away from the Crown. Gives fed gov’t some
power with the ‘notwithstanding’ clause (s.31) and the ‘reasonable limits’ clause (s.1). Ensures Aboriginal rights, and the legality
of affirmative action programs. Contains amending formulas.
Changing the Constitution:
A coup d’état (sudden and violent seizure of power from a gov’t) is one way to change a Constitution. Change may also come
through the gradual evolution of principles and practices, like how the GG should accept the PM’s request to dissolve parliament,
or how the HoC becomes the dominant house even though in the Constitution their powers are roughly equal. Change usually
aims to reform a minor aspect of the Constitution while leaving the whole thing intact. Amending the constitution before 1982
CA 1867 gave Ottawa and the provinces the power to change electoral districts and boundary lines, but had no formula to change
more important matters (like federalism); all that was clear was that a request to the British Parliament was needed for
constitutional change. Before this could be done though, it was not even known who would have to agree in Canada before a
resolution could be spent to the British.
A 1981 stalemate in constitutional negotiations led to the Supreme to make the following points:
1) Some provincial consent was required for changes affecting prov. powers (convention, not enforceable)
2) The level of consent is not clear; a majority had to agree but unanimous consent was not necessary
3) No province had a special right of veto regarding constitutional change
4) Ottawa could legally request the British Parliament to change the Constitution in ways that affected the provinces without
having the provinces’ consent. This would be legal but also unconstitutional.
Thus they went back to negotiations, with Ottawa being legally allowed to request for changes but because of the court’s
acknowledgement that some provincial consent was needed, would make it a very risky political move. Eventually all provinces
but Québec decided on the CA 1982.
Amending the Constitution since 1982
4 amending procedures are laid out in the CA 1982:
General procedure ➞ Passed by HoC & Senate, with ⅔ of provinces that together amount to 50% of Canada. Could be used to
create new provinces, extend existing provinces, change the Senate or SC (except its judges), to reduce or eliminate provincial
powers, rights, or privileges, and to change the representation of provinces in the HoC.
Unanimous consent ➞ passed by HoC and Senate and all provinces. Used to change Queen, GG, LieutenantGovernors, use of
English or French language, composition of the SC, or the amending procedures of the Constitution.
Bilateral ➞ Ottawa and 1 or more provinces ➞ Passed by that province, HoC and Senate. Used to change boundaries between
provinces, or use of English/French in that province.
Ottawa or a province acting alone ➞ If Ottawa, then passed by HoC & Senate; if province, then passed by that province’s
legislature. Used to change the executive gov’t of Canada, Senate, and HoC
Since the agreement between the provincial gov’ts and Ottawa is crucial for most amendments to be successful, the PM and
provincial premiers will probably agree to a change first, and then pass it through their respective legislatures. There is also the
‘opting out’ section, where a province that doesn’t agree to an amendment involving the transfer of power from the province to
the Ottawa does not have to; Ottawa must also compensate provinces that optout.
Citizen participation in constitutional reform
During the early 1980s many interest groups played an active role lobbying the government and influencing public opinion,
leading to a more inclusive policymaking style where popular consent was mediated by both heads of government plus interest
groups speaking on behalf of people. With the Charlottetown referendum popular consent was unmediated and the public played
a direct role in the constitutional amendment process (the public refused to pass it even though legislatures wanted to).
Traditionally intellectuals though that average citizens were not capable to decide such matters and that it should be left to their
elected MPs. Since then, Parliament now can use a plebiscite (referendum) to decide matters of national importance.
Important figures within the Canadian gov’t
The functions of the governor general
In constitutional law, the GG has a lot of power, but by convention, most of these powers are exercised by the executive. The
GG’s unquestionable impartiality means that the PM can ask the GG for advice when it cannot ask others ➞ useful if the PM is in
a tight situation.
Their main purpose however, is to be the guardian of responsible government ➞ they ensure that the gov’t maintains the
confidence of the house, through the use of 3 reserve powers:
1. Power to appoint the PM: must choose the person who will most likely have the confidence of the House ➞ our highly
disciplined parties and SMP system makes choosing this person easy
2. Power to dismiss a PM who tries to govern without the confidence of the House: never been used at the federal level, but its
existence is essential to let responsible gov’t function properly
3. Power to dissolve Parliament and call elections: usually follow the advice of the PM, but occasionally the GG needs to refuse
the request for dissolution if an election has occurred recently.
She is also a representative of the Queen (our head of state) ➞ performs political ceremonies and represents Canada at important
events worldwide/in Canada.
The Prime Minister
All the PM’s powers are based on convention, but centralization has given him more power. PM’s: 1. Advise the Crown on choosing Cabinet. He holds power over Cabinet since they owe their job to him.
2. Chair Cabinet meetings, giving them the ability to decide what the bottom line for the Cabinet will be.
3. Act as the leading spokesman for Cabinet ➞ impt because of media & election campaigns.
The decentralization of Cabinet in committees, although more efficient to deal with the workload, has fragmented the power of
the collective Cabinet. This has made it easier for the PM to assert control ➞ Harper has made decisions without informing
cabinet, limited where ministers may speak and what they may say, and now appoints the chairs of the HoC committees (usually
left to the committee itself).
However, they cannot go too far. Cabinet support is crucial for a functioning gov’t ➞ collective action against the PM could be
disastrous (Carole James). THEY ARE ALSO CHECKED BY FEDERALISM, THE CHARTER, THE OPPOSITION PARTY,
AND THE PUBLIC.
Parliamentary Government in Canada
Many of the functions essential to gov’t aren’t written out — things such as the selection of the PM, who forms the gov’t, the
right of the opposition, and the role of the judicial branch. When the founders adopted a ‘Constitution similar in principle to that
of the United Kingdom’, it means a Constitution based on a set of political traditions rather than a set of written documents.
Consists of the monarch and the legislature. Monarch = head of state; has the power to decide which party will form gov’t, when
Parliament will be dissolved and a new election held, and to give royal assent to a bill before it can become law. In reality their
role is a ceremonial one, and their powers symbolic.
In reality these powers are held by the Crown’s advisers, the Queen’s Privy Council of Canada (all past and present Cabinet
members). Only present Cabinet members use these powers, and at the head of Cabinet is the PM. Cabinet is drawn from the
legislature, and the party with the most seats usually form Cabinet.
PM and Cabinet must maintain the Confidence of the house; if it doesn’t (either through being defeated on impt legislation, like
finance, or on a motion of nonconfidence proposed by the opposition) it must resign. However, party discipline (MPs vote along
party line) means that MP’s do not wield as much power as the principle of responsible gov’t would seem to give them.
Today, it operates through the ‘rights of the legislature,’ and the ‘obligations of the gov’t.’ The legislature has the right to
scrutinize, to debate, to demand explanations, and to vote on policies proposed by the gov’t, and the gov’t has to provide a way to
explain and defend their actions before Parliament. This is largely laid out in the standing orders — the rules that govern
The obligation of a Cabinet minister to explain and defend actions carried out under their name by their civil servants. Contains 2
fundamental principles of the British parliamentary gov’t, that of a strong executive (monarchs used to wield real power) and that
of democratic accountability (monarch’s power now based on the consent of the governed). Thus ministers exercise the power
that are symbolically vested in the Crown but their actions are accountable to the people’s elected MPs.
This ensures that ministers do not abuse their power over civil servants (their employees). However, it is wellestablished that
ministers cannot resign for faults that aren’t their own ➞ just ensure that appropriate actions be taken.
Parliamentary supremacy versus constitutional supremacy
Parliamentary supremacy — courts will not question the right of Parliament to pass any law; parliament embodies the popular
will and any unpopular laws can be defeated by changing the gov’t in the next election. Both federal and provincial parliaments
were supreme and constitutional as long as legislature made by one level of gov’t didn’t intrude onto the constitutional territory of
the other level.
Since the CA 1982 however, much power transferred from the legislature to the Courts, as the SC can now strike down federal
and provincial laws if they violate the Charter. Some believe this is undemocratic since the decisions of nonelected judges are
overriding the people’s elected MPs. Parliamentary supremacy has been replaced by constitutional supremacy.
Judicial independence and the separation of powers
Judiciary is based mostly on constitutional convention and statue law. The Constitution says little about the relationship of the
judicial and other branches, and doesn’t lay out the SC’s powers. 2 fundamental of the judiciary are judicial independence and the
separation of the powers. Judicial independence ➞ judges are free from any interference in their decisionmaking, especially from the gov’t. This enables
judges to be impartial without worrying about their jobs, salaries, etc.
Separation of powers ➞ guarantees the role of the judiciary to interpret the meaning of law and of the Constitution if disputes
occur. This relies more on norms, statue law, and convention than it does on Constitutional law. The Charter also states that the
enforcement of the Charter shall be through the courts — meaning the courts act as a check on the powers of the executive and
legislative, reflecting an Americanizing trend. There are some violations of the separations of powers though, like when fed or
provincial gov’ts ask the courts to see if a potential bill is Constitution of not, and when judges publicly advocate some kind of
position of reform (views on multiculturalism, gender bias in the law, etc).
Relations between the House of Commons and the Senate
Bicameral legislature (two houses) — elected HoC is the lower house, appointed Senate is the upper house. HoC introduces all
money bills and tends to be superior over the Senate b/c of the Senate’s unelected nature and citizen’s resulting feeling of
illegitimacy. There are conventions reinforcing the superiority of the HoC:
1) In selecting the PM and gov’t, convention requires that they be drawn from the HoC.
2) All bills must pass through the HoC and then the Senate; recent convention is that the Senate cannot obstruct or reject the will
of the HoC, but can send it back for minor revisions and reconsideration.
The biases of British parliamentary government
Biases embedded in the structure of British parliamentary gov’t (the concentration of power in the PM and Cabinet, the lack of
serious checks from the legislature against the executive) is labelled statism. It is characterized by a strong political executive
that discourages popular participation in politics, leading to a pop’n that besides voting, tends to be follow those in power.
National celebrations (expo) and the rejection of any change seen as being ‘unCanadian’ foster our country’s identity and
reinforces the gov’t.
The CA 1982 replacement of parliamentary supremacy with constitutional supremacy has helped to engage the public in
Canadian politics and shift from an elitist past to a more participatory model. However, since 1982 power is still concentrated in
the PM and Cabinet and there are few ways for participation in politics beyond voting.
Ch 5 the Canadian charter of rights and freedoms
5.1 What is a charter of rights?
State of nature = state of chaos where one doesn’t feel secure in the possession of his property or his life; leads to a demand for a
constitution. A charter promotes fundamental rights and protects them from being violated by the government; it prevents
majorities from using their size and power to violate other’s rights. What may be a democratic move (wanted by a majority), is
not always a just move (life if they want to prevent women from voting).
People usually view rights and freedoms as fixed things ➞ it either exists or it doesn’t. In reality, treating rights as absolute
comes with 2 dangers:
1. Others may be endangered (should we protect those who promote hate at the expense of others?)
2. It is impractical ➞ we don’t have the time or resources to guarantee every right over the entire country
Since the Charter, many have turned to the Courts instead of Parliament to influence public policy.
What do rights and freedoms mean?
Rights ➞ entitlements considered to be essential, and that require the gov’t to protect [active role].
Freedoms ➞ one’s choice to believe or act in certain ways without interference from the government.
Civil liberties and rights ➞ from UN’s Universal Declaration of Human Rights. Refers to basic rights and freedoms of all citizens.
The main categories:
Political rights / fundamental freedoms: freedom of association, assembly, media, religion & privacy
Democratic rights: to vote and run for office, for regular elections, for rule of law and not of men
Legal rights: to fair and equal treatment under the law, to a fair hearing, legal counsel, etc
Economic rights: to own property and to not be deprived of it, the right to withhold one’s labour
Equality rights: equal protection under the law regardless of race, religion, gender, age, & disability
Language rights: dealt with in 3 ways:
• Eng and Fr are the official language in Parliament and in nat’l or Québec courts
• The rights held by religious schools when they became a part of Canada cannot be taken away.
• Provincial jurisdiction over education, and over all matters of a local or private nature in a province has made it possible
for the provincial Gov’t to promote or deny either Eng./French
• Mobility ,Aboriginal , and social rights On the origins and meanings of rights
Rights USUALLY, not always, arise from political struggles ➞ one group feels that their freedoms are denied or intruded upon by
another group. Rights claims become legitimate only when they are associated with one of society’s fundamental rights (issue of
abortion ➞ proabortion linked to freedom of choice, oppose abortion linked to the right to life).
This has resulted in the placement of rights claims into existing ideological and legal categories that conform to societies notions
of what rights exist and the appropriate way to protect these rights. This is problematic for 2 reasons:
1. By conforming to accepted beliefs, alternative ways to achieve rights claims are discouraged
2. By relying on the courts to achieve rights claims, we strengthen the courts and increase their ability to influence our society
(judges aren’t totally impartial ➞ their values affect their decisions and thus us)
Rights and their protection
With the entrenched Charter, has Canadian politics become ‘Americanized’? 3 main aspects:
1. Unelected judges play a more important role, while elected legislatures lose some of their power
2. People look to the courts more often to solve their political dispute
3. Parliament’s authority to determine the law diminishes
Opposition to Charter: unelected judges are seen are undemocratic and unaccountable to the people. Some believe that the
decisions of elected MP’s will line up more accordingly to popular opinion, and if they don’t elections can replace these MP’s.
Believe rights should be upheld by elected governments.
ProCharter: unelected judges free from the whims of the majority; rights and freedoms should not shift depending on popular
opinion. Believe rights should be upheld by Constitution and judges.
Final Results: Judges take a more active role in policy making; parliamentary supremacy has been replaced by constitutional
supremacy, and many important issues are now decided through the courts, or through gov’t decisions influenced by the court.
However, Cdn judges decisions differ from those of the U.S, reflecting a Cdn political culture.
5.2 How the Charter Works; and 5.3 Remedies
The Constitution is considered the supreme law ➞ the law above all. If one believes a current law or a practice endorsed by a
current law violates their constitutional right, they can take their case to the Supreme Court, who will then decide whether their
rights have been violated. If it is, proper remedy will be made for the individuals, and as for the law, it can either be:
1. Made ineffective
2. Delay ➞ Give Parliament time to amend a law that was considered unconstitutional
3. Read in ➞ reading the law the way the Court thought it actually should have worded
5.4 The preCharter era (1867 & 1981) and adoption of the Charter
Until the 1950s, rights were usually in the background of Canadian political science because CA 1867 hardly mentions the rights
and freedoms of Canadians. Instead there was an emphasis on parliamentary supremacy (courts were reluctant to overrule elected
MP’s decisions) the rights of gov’t ➞ the division of power between national and provincial gov’t. Most laws were upheld or
struck down on the basis that they were under the jurisdiction of a certain level of gov’t and not the other.
Most of the rights in the Charter were already protected through convention and followed by Parliament due to the need to keep
the support of the voters in the face of opposing parties. A series of violations in the early to mid 1900’s (Alberta’s censoring of
speech in 1930s, Japanese detainment, Aboriginal people) led to the need for a constitutionally entrenched charters of rights.
1960s ➞ Bill of Rights passed as an organic statute by Diefenbaker government, which presented 2 problems: 1) since it was a
federal statue, it did not apply to the provincial gov’t and legislatures, and 2) it might not even apply to federal laws since
technically, it wasn’t above any other normal laws (like constitutional laws would be). It was generally seen as only securing
rights that existed before the Bill was passed, and not with rights that people were trying to claim.
1970s ➞ Human rights activists fight for a charter that would affect all levels of gov’t, and Trudeau eventually passed the
Canadian Charter, which may be seen as having 3 parts:
1. Entrenches most of the basic rights in the Canadian Bill of Rights
2. Entrenches some language rights (to match Trudeau’s vision of a bilingual Canada)
3. Includes other areas not covered in the Bill of Rights (mobility rights, recognizing multiculturalism)
Ultra vires = beyond one’s legal power and authority
5.5 Opposition to and concern about the Charter
Claim that it transfers too much political power to the judiciary, an unelected and unaccountable body. Fears that the courts
would impose their moral and political views onto the rest of the country. Counter: an entrenched charter allows the courts to ensure that the democratic majority does not abuse its power,
especially when it comes to protecting minority rights.
Charter cases usually fall in the “periphery”/ gray area, where there is disagreement in whether their rights have really been
violated or not. Public support of judge’s decisions in these cases vary greatly, so why should 9 unelected judges have the final
say? STRUGGLE BETWEEN JUDGES & PARLIAMENT.
Life in the Charter Era
Courts now decide about 1000 charter cases a year. We see a replacement of the view that rights cases should be decided by
jurisdictional turf with the idea that rights issues should be decided by the Charter.
5.6 The notwithstanding clause (section 33)
Originally meant to combine judicial review with parliamentary supremacy; gives parliament or provincial legislatures power to
pass a law even if it would be considered unconstitutional. Parliament could use it to have the final say in cases where they
believe the judges’ decision is wrong.
Some believe it hinders the Charter’s efficiency and weakens the protection of rights in Canada. They argue that if the
Constitution is the supreme law of the land (as stated in CA 1982), then no part of it is should be beyond the powers of the courts.
It is a matter of parliamentary supremacy vs constitutional supremacy:
Pro s.33 ➞ Way to overcome an unpopular court decision without having to amend CA 1982.
Anti s.33 ➞ Protect from tyranny of the majority. Rights must always be protected from popular opinion.
S. 33➞ not usually used, fear of great political lash back because it is seen as an attack on the Charter.
There are a few incidences where its use was greatly supported by the public and media (Québec’s Bill 101, Saskatchewan’s
decision to make striking workers go back to work); in these cases not using s. 33 probably would have been more disastrous than
5.7 Section 1
Allows the gov’t to limit one’s charter rights for the common good usually to match the values of society at the time (i.e. Freedom
of speech ➞ hate speech is limited by slander/libel laws).
Usually 2 stages for determining ‘reasonable limits’:
1. Does the law in question violate a Charter right? Is there evidence that the right should be limited?
2. If it does, it is a reasonable violation? If yes, it’s ‘saved’ by section 1, if not, it is unconstitutional.
It can be saved if it meets two tests:
1. It must be address a major issue that would justify it’s overriding of a charter right
2. The suitability of the means used to pursue the law’s objective (the means used to achieve the end)
3 criteria used when applying the two tests:
1. Are the ways in which the law achieves its goal rational and not based on whims (not arbitrary)?
2. Are there other ways to achieve the same goal without limiting Charter rights?
3. Will the benefits of passing the law outweigh the negatives?
Reasonable limits and the Charter
Courts should exercise ‘judicial restraint’. The 2 parts that go into deciding whether a bill that limits rights is constitutional or not
allows for SC’s to agree that the bill (and thus Parliament’s idea of what is important) is important, but that the means are not
proportionate to the ends. The problem is, why should judges be allowed to decide if the means are proportionate to the ends.
5.8 Applying the Charter: political impact of the Charter
The courts are now seen as the way to uphold rights, and less so parliaments, gov’ts, or legislatures.
3 main patterns are visible in the court’s interpretation of the charter:
1. Scope and authority ➞ From 19841985, the SC asserted its authority as protector of the Charter, interpreting it in ways that
enabled Parliament to perform its job while benefiting most people. They conclude that it is impossible to categorize the
drafter’s true intentions, and that if the original intentions were treated as absolute, the Charter would not be able to adjust to
changing societal needs.
It also decided that the Charter only applies to relationships between the state and citizens, to restrain gov’t action and to protect
the individual, not to privatesector relationships (public vs private). Thus courts tend to remain neutral regarding economic
rights, sometimes at the expense of others. 2. Individual rights and freedoms ➞ Rights have been expanded and better protected, but there are a few circumstances in which
other values take precedence over individual rights (i.e. limiting hate speech). In interpreting individual rights, courts tend to
be divided in their interpretations, and even where they are not it is difficult to predict what their decisions will be in particular
3. Equality and the charter ➞ s. 15 deals with equality rights, not including privatesector relationships (employers, unions,
landlords, suppliers of good and services). Expected to have a great impact on equality but the federal and provincial human
rights codes have had more impact. This is because equality rights have not been treated as superior to other Charter rights
and its ability to overcome the most rooted forms of socioeconomic inequality is limited. In assessing s.15 claims, the courts
try to decide if treating the groups differently undermine human dignity, taking into account the societal, historical, and
economic aspect of the inequalities claimed in s.15 cases.
Queen vs. Mortengaler ➞ Abortions not performed in accredited hospitals with recommendation from an abortion committee
were considered illegal. Dr. Mortengaler wanted to perform abortions in his own clinic and challenged this law. SC’s decision to
strike the law down reversed Canada’s abortion law.
Ch 8 — the Judiciary
8.1 The 4 main role of the judiciary (play more impt role today than they did in 1867)
1) Regulating legal disputes between private parties ➞ John Locke’s social contract ➞ idea that there is an implicit agreement
among human beings to cooperate for social benefits, like giving up some individual freedom to be regulated by a political
regime that will solve disputes before they turn violent. Laws and courts are established to settle disputes, but there are also
private mechanisms for settling disputes, like negotiation mediation (a 3rd party facilitates negotiation between the
disputants), and arbitration (disputants allow a 3rd party to impose a settlement).
Civil code ➞ Québec’s private law. Statuebased. Contains rules governing property and civil rights.
Common Law ➞ Rest of Cda. Judge/precedentbased (provides order), lower courts superior to SC.
2) Regulating public law between gov’t and private citizens ➞ what we can and can’t do. 2 main areas:
1. Criminal Laws ➞ Outlines prohibited acts and punishments. Judges given leeway to decide on specific sentence. Is under the
federal gov’ts jurisdiction ➞ gives them POWER (FORCE) to infringe upon our liberty, but we allow the,. FAVOURS THE
2. Administrative Laws ➞ Anything that needs regulation that does not fall under criminal laws. Usually overseen by tribunals,
whose decisions are binding even though they aren’t courts of law (act as quasi courts). Judiciary can overrule tribunals.
Stems from both orders of gov’t.
Follows mens rea ➞ asks if a reasonable person would have acted the same in similar circumstances. Against retroactivity ➞ can’t
be charged for past acts that are illegal now but weren’t before.
3) Judicial commissions of inquiry ➞ gov’ts ask judges to head royal commissions (which investigate important and
controversial matters) because they are seen as IMPARTIAL and KNOWLEDGEABLE (experience in organizing
procedurally fair trials). Fear that this gives judges too much power and “politicizes” the judiciary, diminishing their
impartiality and fusing the executive and judiciary powers.
4) Judicial review (interpretation) of the Constitution ➞ gives judges a great deal of political power because their rulings
influences policies (but they are not FINAL decisions). They deal with specific cases (individual cases that go through the
courts and end up at SC), and reference procedures,m (legislatures ask the courts to rule on the constitutionality of proposed
8.2 The 3 fundamental principles of the Canadian Judiciary
1. Impartiality ➞ judges must treat all parties equally, without biases. 3 things promote impartiality:
➞ Parties can appeal to a higher court. Encourages impartiality because lower judges know that their decisions can be scrutinized
by a higher court, and parties who face judicial bias’ can get second hearings. Right to appeal is granted only if there are
serious doubts about the lower court decisions.
➞ Our judges act as referees, they make rulings based on the facts and arguments presented to them by the parties involved. This
minimizes their ability to impose their own views on the parties.
➞ Judges must keep silent about political matters (they cannot be members of political parties, speak on politic topics, or publicly
state their political views).
2. Judicial independence ➞ must be free from the control and influence of the executive branch. Judges basically require 3
things ➞ that their job be safe, their salaries be fixed (prevent manipulation by executive), and they must have control over
court processes in order to do their job. 3. Equality before the law ➞ law applied equally to everyone. The problem is that the poor can’t afford the same quality of legal
representation as the rich, so achieving redress may be impossible.
Our Judges are not elected because our democracy entails that we protect and take into considerations minorities. If majorities
elected judges, there’d be no respect for minorities.
8.3 Canada’s court system ➞ governed by 2 key principles
Hierarchy ➞ Courts are organized in a hierarchical manner (supreme court = final court of appeal, their word is constitutional
law). Inferior courts hear minor issues, superior courts hear major issues.
integrated judicial system ➞ organizes courts along provincial and federal levels, each level of gov’t courts have their own duties.
The federal government appoints both appeal court judges and SC judges. We have fed and provincial courts b/c: what system
works for one province may not for another, Québec’s civil code system may place different demands on their judicial system
than common law provinces, and because in 1867 the colonies already had judicial systems tailored to meet their local needs.
Provincial Courts of appeal (local concerns)
Hears appeals from lower courts, and constitutional questions from lower courts, individuals, gov’ts, and gov’t agencies. The
number of judges vary by provinces, but usually cases are heard by three judges.
Act like SC for federal civil legislation & trials. Deals with: interprovincial and federalprovincial disputes, intellectual property
proceedings (i.e. Copyright), citizenship appeals, competition act cases (corporations become too powerful and begin to act
illegally), and cases involving Crown corporations or departments of the gov’t (i.e. Canada post) of Canada. Shares some
jurisdiction with provincial superior courts
Tax courts (favours taxpayer)
Hears disputes after all options in Income Tax Act have been tried. Indp’t of the Cda Revenue Agency
Military Courts (Courts Martial)
Established under Nationa