Legalization of politics
o Section 1
rights articulated in the charter are not absolute. Section 1 the reasonable limits
clause= sets reasonable limits on all rights = exempt certain laws for the
application of the charter
If: the objective of the government in limiting a charter right must be pressing
and substantial and the means adopted must be impair the right as little as
o Section 33
In the areas of fundamental freedoms, legal rights and equality rights either
level of government is allowed to pass legislation contrary to the charter
(cannot circumvent democratic rights, mobility rights, linguistic rights)
Used rarely= Saskatchewan and Quebec
Promotes parliament above the courts
Example 1988- Women's groups- abortion rights
o Michael Mandel
1.Judges make highly political decisions but disguise through legal
interpretations and abstract principles
Challenges the idea that politicians make decisions that are popular,
political and self-serving while judges decisions are impartial, object and
2.Charter has been sold as enhancing democracy and the power of the people.
It has really reduced the degree of popular control over government=
transferred power from representative, accountable legislatures to
unrepresentative, unaccountable and unrestrained judges Mandel challenges
3. Enhances individual and corporate rights against the collective welfare of the
4. Legalization of politics is conservative, class-based politics that defends the
existing social arrangements and undermines popular movements (cost of
litigation, background of the judges)
Mandel Argument= parliament may be flawed but at least we vote them in.
They can make a decisions without being held accountable.
Judges are chosen based on political positions.
Describe Mandel's critique of politics- possible exam question
4 critiques ^
Federalism o What is Federalism?
A political system in which most or all of the structural elements of the state are
duplicated at two levels, with both sets of structures exercising effective control
over the same territory and population. Neither set of structures can abolish the
other. As a corollary to this relations between the two levels of government will
tend to be characterized by bargaining.
Federalism is a way to limit the national will of the majority but protect minority
rights through a division of interests between the national and sub-national