Charter of Rights and Freedoms

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24 Nov 2010
Canadian Politics: Week 8 t November 2nd, 2010
Possible test questions:
Different faces of federalism over the years.
How courts have influenced the evolution of federalism.
Charter of Rights and Freedoms (CRF)
1. Judicial Review of The Constitution
- The Constitution requires interpretation, role of courts
- Words, especially in the Charter, are elastic
- &Z}(}v(]}v]v[o]ÌZ}Á}]ÇÁ}µoÀ}oÀUZ}Á]vµ]ÀP}Àvuv
Section 7:
Singh (1985)
- Non-citizen landed in Canada, claimed to be a refugee, asked to leave
- Claimed that he was being denied principles of fundamental justice
- Supreme Court ruled that everyone in the world who sets foot in Canada has a right to
Section 7
Morgentaler (1988)
- Security of the person, can a woman have an abortion without being subject to the rules the
government had set up?
- ^µ]Ç}(Z}v]voµÁ}uv[]PZ}ZÀv}]}v
Borowski (1989)
- Everyone including the foetus should have a right to life, liberty, and security of the person
- Courts ruled that foetuses do not
- Constitution making is never complete, constantly evolving, requires interpretation
- Courts add flesh and bone to the Constitution through the rulings they make
- When a court makes a decision it becomes part of the constitutional law in Canada
- Approach to Constitution interpretation:
o Take it literally
o Look at context and spirit
o Defer to the legislature, defer to government
If government passes a law, go along with it
- Canadian courts now appear much more like American courts than British ones
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- Gone from a system of parliamentary supremacy before 1867, now we have full blown
constitutional supremacy
- 1982 Constitution dramatically broadened courts legitimacy
o Explicitly provides for judicial review, takes us to a stage of constitutional supremacy
o Can take government to court if think rights have been violated
- Why did we get a Charter?
o 1960, Bill of Rights
Courts took a limited interpretation of Bill of Rights
Bill of Rights }v[P]Àv]vvÇvÁ]PZU((]uZ]PZ
they already had by common law
Only applied to federal legislature
o Movement towards having a rights document in the aftermath of the Holocaust, UN
passed Universal Declaration on Human Rights
o 1õôîZ]v[iµ}(ooP]oµ
o Gave more rights to individuals and groups of individuals
o Charter challenges and accommodates supremacy of Charter
Challenges by spelling out rights people have, can take governments to
court if feel rights have been violated
x Also, Section 33, the notwithstanding clause, allows legislatures to
immunize themselves from certain parts of the Charter
o Can be used by federal and provincial parliaments
2. Public Opinion and the CRF
- Polls show that Canadians love the Charter
- Public opinion in support of the Charter is just as high in Quebec as in the rest of Canada
- Canadians favour the Charter because they trust judges and courts more than politicians,
journalists, media, Parliament
o In Canada, the courts are perceived as transparent, devoid of corruption, give
personal gain
- Public appreciates equality provisions, Section 15
o 90% of Charter cases deal with the rights of alleged criminals
- Public say they like the Charter, but when ask them specific questions, more than half want
to extend police powers even when civil rights of the accused are being violated
o Public has contradictory opinions, is hypocritical, is ignorant of details of the Charter
- Other reasons for Canadians being favourably disposed to the Charter:
o Charter is inherently progressive, broad interpretations of elastic terms are going to
lead to more progressive society
Rights in Charter very malleable
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