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Charter+Outline.doc

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Department
Political Science
Course Code
Political Science 2230E
Professor
Caroline Dick

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1The Charter of Rights and Freedoms Canadian Politics 2230E 02 October 2012 Major Questions: 1) To whom or what does the Charter apply? - courts have the capacity to put down a law that is unconstitutional - widen the scope of judicial review - section 32 (1) applies to the parliament and government - only against the government 2) What does s.1 of the Charter provide? How has the judiciary interpreted s.1? - reasonable limits - rights are not absolute  not guaranteed - okay to be limits on our rights, as long as they are reasonable - open to interpretation  universal… - does not give judges guide lines, or when they can do this - no concrete guidelines - court needs to bring life into section one 3) What does s.33 provide and how does it operate? - federal government or provincial legislation has the rights to violate our rights - the government can pass the same legislation with section 33 attached to it - it’s what Quebec wanted  they thought that government who intrude into their legislation - federal government picked who is on the court  government could strike down provincial legislation they didn’t agree with - there is going to be difference between provinces - no more policy diversity was the idea - major rights can be violated - only lasts for five years  there would be an election to change the government - Quebec has used it a lot - Ford (SSC) - preemptive use - use it before the legislation is changed  can’t challenge it - government should provide legitimacy striping Canadians of their rights - Supreme Court thought it was okay because they didn’t want to review their sovereignty  anti-democratic (moving to courts having the final say) - court does not always have the final say on putting down a legislation 4) What has been the most popular criticism of the Charter enterprise? How is this criticism framed by critics on the left? - anti-democratic - judicial can’t make law - democratic politicians are accountable to the people and make laws - judicial is pulled into law making and public policy - transfer of political power to judges to make public policy - section one cannot override rights - Oakes Test: better way to draw up legislation; do less harm to public rights - they are drawn into areas with no legal definition (absorption, porn, etc.) - gives it to unelected judges - both left and right find it is undemocratic - who’s interest are they going to follow Question Left Right Charter anti- Yes Yes democratic? Who or what is greatest Capital ($) State threat to individual liberty? Who will abuse judicial Capital ($) Court Party review? Which interests will Capital ($) Court Party judge favor? What is the appropriate Expansive/Egalitarian Limited role of the state? 5) Given liberalism’s rationale for rights, should corporations possess Charter rights? Do they possess Charter rights? - public/private distinction (market and family – state does not interfere  self- actualization, no interference into reaching goals) - we have rights to protect us and give us opportunity - judges come from wealthy background - do things that will favor them - if you look at decisions that there is a bias in favor of corporal interest - companies are made up of people - they do possess some charter rights - no religious rights, no section 7 rights - they have freedom of expression rights - legal rights, search and seizure, tried within a reasonable time - no property rights - nobody can bring a charter right is an economic claim  economic interest and an non-economic interest is okay however 6) Most popular criticism of the CORAF enterprise from critics on the rights: - transfer from democratic to undemocratic - one thing for a court to strike down legislation  making the state act for freedom - tell them what they have to do  court creates a new charter right - court party: - who is using the charter litigation (special groups) - collection of social movements that prefers the policy making power of the court - courts are seen as less democratic institutions - social movements/special interest groups  going to the court to get what they want (political agendas) - consists “equality seekers”  bring more social equality (Aboriginal  section 25,35) - “Charter Canadians”  people who gain recognition under section 15 - green people, LGBTQ, etc. are in equality party - their goal is to reverse the decision of elected legislators - another way to do it without lobbying - positive obligation on the state 7) On what grounds do scholars contend that the Charter enhances democracy? Morton and Knopff: - right wing critics - pre-commitment  democratic chosen and agreed to charter  people chose to go to judicial review  have legislation be challenged by court (upholding the charter is when society is going well) - intent of the charter with respect to court party:  benefits member of country party (champion minorities)  tyranny of the majority  wrongly going after charter rights Gregory Hein: - democratic, judicial review enhance democracy, not undermining democracy - litigation is democratic because it gives a voice to those who are shut out of the electoral system - a lot of political interest are not represented in our legislation (geographic location) - provides a voice to those who are not represented (all people must be represented, provide a voice for those who can’t speak loud enough) - protect them from special interest groups (corporations) - legitimate, important part - shows the problems within the legislation Terms: judicial review the Court Party the Oakes test pre-commitment notwithstanding clause judicial democrats preemptive use of s.33 the public/private distinction Cases: R. v. Oakes (1986) (SCC) - case in which they established a framework for section one - whether or not a limit on a right was reasonable - Oakes Test Ford (1988) (SCC) - PQ passed Bill 101 - protect the French language  French advertisement only - freedom of speech was violated - Quebec attached section 33 to very law passed  only lasts for five years *ominous bill - Supreme Court stuck it down - then Quebec passed Bill 178, outdoor has to French, indoors both language but French was dominant  made the legislation immune from challenge Meech Lake Accord: - 1988 - Quebec was a distinct society  used to beat up non-French minorities - section 33 became virtually unusable outside of Quebec - became very unpopular Big M Drug Mart (1985) (SCC): - drug store that was open on Sunday - Lord’s day act – no business on Sunday - infringed their right to have business open - violates employees’ rights  law h
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