POLS1201 Lecture Notes - Lecture 2: Concurrent Powers, Canada Pension Plan, Social Union Framework Agreement
10/12/16
1
PRE-CHARTER
•Courts did strike down –Alberta 1938 law infringing on freedom of the press;
Quebec laws aimed at suppressing activities of Jehovah’s Witnesses and
Communists
1960 BILL OF RIGHTS
•Between 1960 and 1982 –34 Bill of Rights cases decided by SCC
•Rights claimants only won 5 times (15%)
•Only one law struck down (Drybones)
THE CHARTER REVOLUTION
•A watershed in term s of the powers of citizens and courts vs. the powers of
governments
•Charter rejects parliamentary supremacy –Section 52 “the Constitution of Canada
is the supreme law of Canada, and any law that is inconsistent with the provisions
of the constitution is, to the extent of the inconsistency, of no force or effect”
•Requires governments’ legislative and policy actions not violate the rights and
freedoms in the Charter
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10/12/16
2
THE CHARTER REVOLUTION
•Much wider scope of judicial review
•Previously legislation would be found ultra vires (another government could enact
law)
•Now if law is struck down neither level can enact it
THE CHARTER REVOLUTION
•Made it easier for Canadians to initiate constitutional review
•Section 24 of the Charter –“Anyone whose rights or freedoms, as granted by the
Charter, have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate and just in the
circumstances”
COURT REMEDIES
1) Strike down (nullify) a law that is inconsistent with the Charter
2) Postpone nullification give time for the legislative body to
correct the law
3) Strike down offending parts of the law (not the entire law)
4) “Read in” additional words to make the new law more
inclusive
5) “Read down” a law, a narrower rather than broader
interpretation of the law
6) Grant an exemption to individuals or groups from legislation
that would violate the Charter if applied to them (ex. Religious
based law)
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10/12/16
3
GUARANTEE OF RIGHTS AND
FREEDOMS
Section 1. The Canadian Charter of
Rights and Freedoms guarantees the
rights and freedoms set out in it subject
to such reasonable limits prescribed by
law as can be demonstrably justified in
a free and democratic society.
TWO-STEP PROCESS
(SECTION 1)
• Claimant must first show that a Charter right has
been impaired by a law
• Government must justify the infringement
1. If a government is to limit a right, its objective
must be pressing and substantial
2. The means must be proportional to that objective
FUNDAMENTAL FREEDOMS
Section 2. Everyone has the fundamental
freedoms:
a. Freedom of conscience and religion
b. Freedom of thought, belief, opinion and
expression, including freedom of the
press and other means of
communication
c. Freedom of peaceful assembly
d. Freedom of association
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Document Summary
Pre-charter: courts did strike down alberta 1938 law infringing on freedom of the press; Quebec laws aimed at suppressing activities of jehovah"s witnesses and. 1960 bill of rights: between 1960 and 1982 34 bill of rights cases decided by scc, rights claimants only won 5 times (15%, only one law struck down (drybones) The charter revolution: much wider scope of judicial review, previously legislation would be found ultra vires (another government could enact law, now if law is struck down neither level can enact it. The charter revolution: made it easier for canadians to initiate constitutional review, section 24 of the charter anyone whose rights or freedoms, as granted by the. Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances .
