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A+ Notes: Judicial Power

Political Science
Course Code

of 3
Liberal Democracy
Limited Government
Rights and Freedoms
Inalienable and Inalienable
“No Harm Principle"
Charter of Rights
Bill of Rights, 1960
Constitutional Entrenchment
Patriation Reference, 1981
Night of the Long Knives
Charter of Rights and Freedoms, 1982
Reasonable Limits
Notwithstanding Clause
Judicial Power
Least Dangerous Branch
Countermajoritarian Difficulty
Judicial Review
Judicial Power and Charter
Liberal democracy as Gov’t (liberal > demo in liberal democracy)
limited gov’t
freedom of speech, religion, association/assembly
sphere of human activity where no one can decide, gov’t has no control
signature achievement of Western democracy
Liberal democracy as theory
rights are self-evident, inherent, inalienable
allowed to violate rights within reason
gov’ts formed to protect rights – restrict freedoms of one to protect others
no harm principle – allowed to do anything as long as it doesn’t violate other ppl’s
gov’t limited by constitution – constitutional supremacy, not parliamentary
Development of the Charter
1960s: Bill of Rights Era CCRF
regular piece of legislation (can’t
B of R rights could have been violated
not supreme
easily changeable
awkward for judges – can’t have
conflicting laws, which takes priority?
Bliss v. Canada (1979)
EI benefits, pregnancy
discrimination based on
pregnancy, not sex
1970 Abor. drinking
Bill of Rights used to strike
entrenched – any legislation conflicting
Consti. is not law
Patriation Reference
Feds, NB ON vs Que & Rest
Trudeau vs Levesque
Kitchen Accord aka “Night of the Long
down law
Trudeau entrenching it w/o prov. support
court challenge Patriation reference
does fed have power to change Consti. w/o approval of prov?
didn’t legally need prov. consent, but by convention they should
convention is not rule – why should judges decide what convention is
1980 Que Ref – Trudeau promised consti. change if vote No
oil prices - National Energy Program (1980)
citizens didn’t know Constitution – unwritten, unclear
Kitchen Accord:
NB, ON sided w/ feds vs Gang of 8
Levesque agreed to put it to referendum ref. won’t be about technical
details (amend. formula), would be about Charter
Trudeau’s concession – NWC
The Charter
1st 34 clauses of CA, 1982
s.1 reasonable limits
s.2 fundamental freedoms
a) freedom of conscience and religion
b) freedom of thought and speech
s.3-5 democratic rights (right to vote & stand for election)
s.6 mobility rights (rught to enter & leave country, move b/w prov)
s.7-14 legal right
life, liberty and security of the person
presumed innocent
no cruel or unusual punishment
right to counsel & be informed of that right
habeas corpus
s.15 equity (except for affirmative action programs)
s.16-23 language rights (French & English)
s.24 enforcement of Charter – may apply to court for remedy if rights are violated
s.25 Aboriginal rights
s.32 Charter applies to all gov’ts
s.33 NWC
Judicial Power
least dangerous branch
“neither purse, nor sword, merely judgement”
judicial review
paradox of liberal constitutionalism
who guards the guards?
supposed to be rule of law, but if judges interpret laws, then rule of man
constitutional doc is ambiguous judiciary interprets = power
s.33 safety valve?
liberty vs democracy
Charter protects minority rights
PM & legislature accountable to ppl majority vote
how to protect minority rights from will of majority?