Study Guides (380,000)
CA (150,000)
Concordia (2,000)
POLI (90)
Study Guide

POLI 324 Study Guide - Comprehensive Final Exam Guide - Judicial Review, Canada, Supreme Court Of Canada


Department
Political Sc
Course Code
POLI 324
Professor
James Kelly
Study Guide
Final

This preview shows pages 1-3. to view the full 115 pages of the document.
POLI 324

Only pages 1-3 are available for preview. Some parts have been intentionally blurred.

Only pages 1-3 are available for preview. Some parts have been intentionally blurred.

POLI 324
September 6th
Contested Constitutionalism
-The introduction of the charter of rights has produced a vigorous debate between:
- the critics of judicial power: Conservative judicial critics vs left wing charter critics. 2 clear
distinctions
- the defenders of the supreme court of Canada and its activist approach to the charter-they
challenge the conclusion of the charter critics
-Considering nature of the charter and the role of the SCC in its interpretation
How do you reconcile having the final word on laws passed by the legislative branch.
Themes of Inquiry
Has Charter review undermined democracy and resulted in the rise of jurocracy? (Manfredi,
Huscroft) jurocracy: ruled by judges
Has Charter review centralized the federation and undermined provincial diversity? (Laforest)
1992 the provincial governments were opponents to the charter of rights and freedom. The
problem they saw was that it contained national values, the values of the federal government.
The charter would be used to invalidate the provincial laws.
Quebec was particularly concerned as the main instrument (BILL 101).
Has Charter review resulted in the legalization of politics? (Petter) fundamental policy debate
would shift from the political arena to the judicial arena. Problem with the legalization of politics
(left wing critics). Freedom of expression.
Has Charter review resulted in policy distortion? (Manfredi and Maioni, Riddell) does the court
have the institution capacity in certain areas of the charter. The charter is mainly about legal
rights, the rights of the accused, legal protection. Should the court be involved in socio debate?
Constitutionality of public health? Are they equipped as policy actors? Beyond the rights of the
accused and so forth.
Has Charter review resulted in an institutional dialogue between Parliament and the Courts?
(Hogg, Hiebert, Kelly)
Lecture Outline
Three objectives will be pursued in the next 2 lectures:
1. Outline the main judicial roles pre-and post Charter.
2. Outline the main features of the Charter of Rights.
3. Outline Contested Constitutionalism and Critical Positions on Judicial Review/Judicial Power.
find more resources at oneclass.com
find more resources at oneclass.com
You're Reading a Preview

Unlock to view full version

Only pages 1-3 are available for preview. Some parts have been intentionally blurred.

1-The judicial Role
-The constitution act of 1982, is suggested to have fundamentally transformed the role of the Supreme
Court of Canada
Pre 1982
Umpire of Federalism : one of the role of the court in the federation is to regulate the roles of powers.
The constitution distributes responsibilities between the two branches of government: Division of
powers. When the division of power is in dispute it becomes the role of the court to regulate the dispute
and find a resolution between those two. Constitution was written in 1967. Umpire of Federalism is
argued to be Neutral, it is a political actor but a neutral one. The role is exercised today by the court.
Associated with the judicial role under the British North American Act, 1867.
Courts patrol the boundaries between the two orders of government and ensure respect for
the division of powers.
Limited remedial powers: simply determine which level of government has jurisdictional
authority for the exercise of constitutional provisions.
Post 1982:
Guardian of the Constitution: Now the court is argued to be the guardian of the constitution. The court
adopts this metaphor for itself, protection of the citizens from the government ideology. More
substantive role.
The Supreme Court of Canada (SCC) adopted this role in one of the first Charter decisions:
Hunter v. Southam. One of the first charter decisions by the SCC, in this decision the court
recognized that the charter was very different from the Canadian Bill of Rights. The Charter of
rights is a constitutional document. The chief justice recognized that the court had a new role
which was to protect the fundamental rights of the citizens.
The hate of ight, is the fist tie that peoples ights ad feedos ee atuall
enumerated.
The guardian role finds its foundation in two constitutional provisions.
The charter is not different from the Constitution act of 1982, it is the first 35 amendment that
becomes the constitutional right.
Section 52 of the Constitution Act, 1982 : The Constitution of Canada is the supreme law of Canada, and
any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency,
of no force or effect---Constitutional supremacy.
Until 1982 we were operating under parliamentary supremacy. This section indrocues Constitutional
supremacy.
Supreme law vs ordinary law: Ordinary law is any act passed by the parliament, for instance a statute.
A constitution is a supreme law which is above the ordinary law. Any act of the parliament therefore
needs to conform the supreme law.
find more resources at oneclass.com
find more resources at oneclass.com
You're Reading a Preview

Unlock to view full version