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POLSCI 1G06 Study Guide - Final Guide: September 11 Attacks, State Terrorism, Parliamentary Sovereignty


Department
Political Science
Course Code
POLSCI 1G06
Professor
Todd Alway
Study Guide
Final

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Section A. 3)
In what ways does the Canadian Charter of Rights and Freedoms attempt to balance between
Parliamentary supremacy and the supremacy of the Courts? Does the Charter give too much
power to either institution?
-The Canadian Charter of Rights and Freedoms was created to protect individuals and their
rights.
-Sections 33 of the Canadian Charter is known as the notwithstanding clause, which ultimately
permits governments to override certain rights and freedoms which are guaranteed by the
Charter. This section of the Charter also provides elected officials the ability to overrule the
courts, should they feel the need to do so exists.
-Section 33 has the ability to override rights outlined in Section 2; Fundamental Freedoms,
7-14; Legal Rights and 15; Equality Rights.
-Section 1 is the reasonable limits clause, guarantees that the rights of the Charter will be
fulfilled, however they are not absolute and can be infringed upon should the Courts it to be
reasonably justified. The Court uses the Oakes Test to justify whether or not a violation is
reasonable.
-The Oakes Test was established during the case of R v Oakes 1986 when Oakes claimed that
the Court was violating one of his freedoms and rights. Therefore, the Oakes Test was
established which consists of a two-part legal test, which is applied each time a Charter
violation is found in order to determine if a law infringes a Section 1 Charter right.
-The Oakes test involves two components in order to determine whether or not a cause is
reasonable:
-1. The government must prove that the objective of the law is pressing and substantial and
more important to society.
-2. The limitation of the right must have a rational connection to the objective of the law in
question. Also, there must be minimal impairment of a right. Lastly, there must be a
proportionate effect in the sense that the overall benefits and positive effects of the violation
on society as a whole must balance the negative effects. The Court also asks if the limit if
proportional to the law’s purpose.

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-Should a case pass through the Oakes Test, then the Court and government have earned the
ability to override the individual’s right in order to serve society as a whole.
-Since the addition of this section in 1982, the “notwithstanding clause” has been used three
times in Canada’s history. Section 33 of the Charter fails to serve a purpose in todays Canada.
-The “notwithstanding clause” creates tension between the power of the Court and power
possessed by the government. The Court is given the duty to interpret and ensure that the
Charter is respected and enforced. The government is able to override some rights outlined in
the charter, which conflicts with the duty of the Court.
-Though the government must convince the Court that this violation is reasonable, it creates a
dispute over who has the power to enforce the Charter. In attempt to prevent unnecessary
violations of the Charter, the Court uses the Oakes Test to determine whether or not the
potential override is sensible.
- By providing the government with the power to override rights and freedoms, there is strain
and a struggle for power between the government and the Court. Each time the clause is used,
it stirs up controversy. The federal government has not used the notwithstanding clause as of
May 2007.
- The notwithstanding clause has been unused for nine years, which addresses the irrelevance
of the declaration. The Charter was designed to protect human rights and the notwithstanding
clause violates with the purpose of the Charter, along with creating tension and unequal
distribution of power between the Court and the government.
- The Court should maintain the sole duty of interpreting and enforcing the Charter and the
government should not have the ability to intervene on the Court’s duty.
-Section 33 of the Charter is quite nearly irrelevant to today’s society and only creates tension
between institutions.
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