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Public Policy and Administration Studies
PPAS 3136
Sirvan Karimi

July 11, 2012 Background of entrenchment of Charter Quiet Revolution – Within Quebec, a rise of new education class – demand to Canadian government for more power, and change of constitution (Canada tried to please them…) -First amendment: Victoria charter (agreement to bring back Canadian constitution and entrench the Bill of Rights but Quebec rejected it) – we didn’t have an amending formula because it was not needed 1980 Quebec referendum – wanted political independence (Trudeau promised to alter the constitution if referendum was put to a stop) – bring back Canada constitution (legally it is allowed, but it would be a violation of convention –unwritten rules) 1982 Constitution brought back – a new amending formula (rules, procedures, we can change it without asking British government) and charter of rights and freedoms There seems to be hierarchy of rights… Two sets of rights – one that can be easily taken away by government (common rights) section 2, 7-15 through invoking section 33. Can be taken away or limited by section 1 – privileged rights 3-5, 6, 16-23, 27. – There are some rights that are not able to be invoked by section 33 – Section 28 (sexuality rights), Section 35 (aboriginal rights) Rights in the charter are not absolute – can be limited and taken away in many ways Kindler – American who committed murder in USA and arrested in Canada – did not ask mister of justice for Kindler not to be executed Burns – Canadian murdered in America and arrested, did not follow same ruling as Kindler (asked minster of justice that they will not be executed because they were young, Canadian, many people executed in United States were found to be innocent. – evidence within the last one year) Language of the constitution very broad – and accommodates unexpected situations – flexible interpretation of the charter because constitution is hard to change – doctrine of living tree developed by JCPC – based on the case of person’s case when women were not allowed to be appointed to senate – ruled that constitution is like a living organism and must be able to adapt to changes in society and life – and the thoughts towards women have changed and so the interpretation of the constitution must also be changed Originalism – the main argument that judges should be flexible because if judges should only look into the original intention of the law when it was written – but problem because the people who wrote the law at the time did not know that society would evolve to what it is now. Judges look at the purposes behind particular rights – purpose behind generosity – complementary Strengths of the Charter 1- Part of the constitution: it is applicable to both levels of the governments 2- Cannot be easily changed 3-Expands for judicial review (whether or not if law affects Canadians and citizens as well not just governments) 4- Via S.24 allows citizens to challenge the laws that make them feel it has violated their rights Limitations 1- Certain built in qualifications – has clauses but within there is qualifications within the clauses 6- need to be Canadian to enter and leave and permanent residence are allowed to move to wherever they want but once someone moves in order to receive social services there may be one qualification, 7- life liberty and s
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