POL 214 Week Two
September 17, 2012
1. Constitution and Constitutional Change: Supreme Court of Canada
The Constitution is the statement of the will of the people. Changes to be made to the
constitution are handled by legislatures and the governmental bodies, specifically MPs
who are elected by the people to represent their political values and wants for the country.
Every province has the ability to initiate constitutional changes. According to the
Supreme Court of Canada the Constitution is more than a written text, it embraces global
rules that exercise global authority.
The underlying principle of the constitution according to the Supreme Court of
“recognize the diversity of the component parts of Confederation
and the autonomy of provincial governments to develop their
societies within their respective spheres of jurisdiction”
provinces are not constitutionally subordinate to the federal
Ottawa not dependent on the provinces for the exercise of power
assigned by the Constitution
Law making and revenue raising authority between central and
o Constitutionalism and Rule of Law
Public authority must ultimately be exercised in accordance with
the law and that there will be one law for all persons
Everyone entitled to equal treatment under the law
Constitutionalism principle involves predicable governance that
has its source in written rules rather than in the arbitrary wills of
Parliamentary supremacy existed before the Charter was
entrenched, thus constitutionalism puts matters relating to rights
and freedoms beyond the reach of any government but now live in
a time of constitutional supremacy
o Respect for minorities
Constitution Act 1867 entrenched the principle of minority rights
Principle acquired a new level of prominence as a result of the
Charter of Rights and Freedom
o Democracy Constitution was remarkably silent when it came to the rights of
citizens before the Charter
Supreme Court explains “representative and democratic nature of
our political institutions was simply assumed”
The precise meaning of democracy has evolved over time,
example: Women did not have the vote for more than 50 years
Nationwide majority doesn‟t trump a provincial majority if the
matter constitutionally belongs to the provinces
Competing Constitutional Visions (4)
- Trudeau envisioned the Pan-Canadian vision
- Who can ask Britain?
- Only the parliament of Canada expresses the ideals of the citizen
- Parliament – represents the totality of the people of Canada
- Sole democratic bodies for Canadians
- Charter of Rights and Freedoms- generates the idea of equal citizens
- Community of equal citizens governed by majority rule and based on rule of law
2) Federal-Provincial Ensemble
- ex. S.6 mobility rights
- objections- changes based on what parliament wants and neglects provincial and
- must look at Canada as a package amongst the provinces and federal government
- express a convention federalism
- we live in a country split into two nations English and French
- partnership between two societies
- stresses Quebec distinctiveness from all the other provinces
- their national assemble is a guardian of their heritage
- the dualistic view of Canada
- only place where they are a majority and the need to protect
- point to a constitutional document before 1763
- Royal Proclamation pg. 507 refers to the first nation people
- Their relationship predates the constitution formation
- Canada a productive tri-culture collective
- No independent political authority written into the constitution Amending Formula (5)
- fed and provincial members couldn‟t agree on a formula
- 1 convention London became a trustee as to how the changes were dealt with
- Britain would act on every request was agreed to
- 2 convention 1875 the Canadian parliament had to make the request come in
a joint resolution
- Senate and House of Commons
- 3 convention UK Parliament would not get involved when it came from a part
- parliament would not ask for Britain changes that dealt with division of power
between provincial and federal governments
1) S. 38 and 42 General
- resolution passed by House of Commons and the Senate
- 2/3 of the legislature of the provinces that together comprise at least 50% of
2) S. 41 Unanimous Consent
- resolution passed by House of Commons and the Senate
- resolution passed by every provincial legislature
3) S. 44 and 45 Ottawa and one or more provinces
- if Ottawa, a resolution passed by the House of Commons and the Senate
- if a province, a resolution passed by its legislature
4) S. 43 Ottawa or a province acting alone
- resolution passed by House of Commons and the Senate
- resolution passed by the legislature of each province where the amendment
Brooks Chapter 8: The Machinery of Government
Canada is a Constitutional Monarchy. The monarch (currently Elizabeth II) is a
symbolic of the political authority of Canada. Conventionally, the monarch is
responsible for appointing the Prime Minister, however this is not practiced today.
When the monarch is not present in Canada, she is represented by the Governor
General. The roles of the Governor General, like the Monarch, are mainly symbolic. Constitutional Conventions
These are traditions that are not necessarily in accordance with what the
Constitution has set out, but have been over time accepted as standard. For example,
the Governor General can refuse the Prime Minister’s request that Parliament be
dissolved and that a new election be held. However this is highly impractical
especially in the case that the government requesting dissolution is a minority
government. The last time this happened was in 1926 when Governor General Lord
Byng refused Mackenzie King’s request for a new election. Since then, the view of
most constitutional experts has been that the monarch’s representative is required
to accept the ‘advice’ given by the Prime Minister.
The Canadian Government is comprised of three branches; the legislative branch, the
executive branch and the judicial branch, all of which are summarized as follows:
The Executive Branch
The Executive branch consists of the monarch, the Governor General, the Prime
Minister and the Cabinet.
The Prime Minister and the Cabinet
The Prime Minister and the Cabinet are at the centre of the policy-making process.
The Prime Minister is, by convention, the leader of the party in the House of
Commons with the most seats. The cabinet ministers are appointed by the Prime
Minister; they are often members in the House of Commons. The Prime Minister is
always the pre-eminent figure in Canadian politics, with powers than include
appointed the members of Cabinet, deciding when a new election will be held and
deciding on the administrative structure and decision-making process of
This is another constitutional convention that strengthens the powers of the PM and
the Cabinet because it encourages party discipline, ensuring that elected members
of a party will act as a unified bloc particularly when voting on budget measures and
important government legislation. This concept allows the PM and the Cabinet to
move their legislative agenda through Parliament without serious impediment.
Central agencies are parts of the bureaucracy whose purpose is to support the
decision making of the Cabinet by providing the Cabinet with needed information,
communicating Cabinet decisions to the public, etc. Some examples are as follows:
The Department of Finance is the chief player in formulating economic policy; The
Privy Council is the Cabinet’s secretariat and principal source of policy advice to the
PM; the Prime Minister’s Office is comprised of officials who handle the PM’s
correspondence and schedule, speech writing, media relation, and provide advice on
appointments and policy.
The Legislative Branch
The Legislative Branch consists of the House of Commons and the Senate. The primary function of the legislature is to pass laws. The House of Commons is a
democratically elected body with 308 members, each representing a riding.
Members in the Senate are appointed by the PM. Each of the 4 main regions
(Ontario, Quebec, the four western provinces and the Maritimes) have 24 seats;
Newfoundland has 6; there is 1 each from the territories. By law their powers are
relatively similar with a few exceptions. Legislation involving the spending or
raising of public money must be introduced in the House of Commons. The House of
Commons has more legitimacy because it is elected.
Oversight of Government Performance
The legislative branch oversees government performance through the Question
Period (an opportunity for the opposition to scrutinize and criticize the
government) and the Opposition Days (when the opposition parties determine the
topic of debate).
The House of Commons is symbolically important because, since it is elected, it
represents the interests of the citizens. It is practically important because citizens
often turn to their elected representative when they experience problems with the
bureaucracy or when they want to express their views on a government policy. The
senate does not fulfill this representational role as it is not elected
The debates that occur in the legislative branch are significant because they allow
Canadians to experience the exchanges that take place across government branches
and opposition parties. They are unpredictable and reinforce the popular belief in
open and competitive quantities of Canadian democracy.
The legislative branch is legitimizing because most of the mechanisms of democratic
accountability are embodied in the structure and procedures in Parliament. It
represents the people, debates public issues and criticizes the government on its
The Democratic Deficit
The problem of the democratic deficit is rooted in the belief that power is too
centralized around the PM and the Cabinet in Canadian government. The following
instance corroborates the view that corrupt practices were made possible by a
system of government that did not provide adequate checks and balances: millions
of dollars of tax payers money were channelled to Quebec advertizing agencies with
Liberal Party connections during the years after the 1995 referendum for services
that were often not provided.
The Judicial Branch
The responsibility for the courts is divided between Ottawa and the provinces. The
responsibility of the judicial branch is to enforce and interpret the law. All provinces have established their own systems of courts that interpret and apply both federal
and provincial laws, while Ottawa has the authority to create courts. This authority
was used to create the Supreme Court, which is Canada’s highest court of appeal.
Independence of Judges
Judges are appointed by governments and hold their office until age 75, or until they
perform a lapse of ‘good behaviour.’ This would include a criminal or serious moral
offence or decisions of incompetence. However these lapses seldom happen.
Although judges may act in favour of the Prime Minister that appointed them, they
have salaries regulated by law so governments cannot single out any individual
judge for special reward or punishment.
First Reading: Bill is tabled in H of C or Senate;
How a Law is Passed explained by member introducing bill.
Second Reading: Debate on principles of bill; a vote
Reading is taken. If passed, referred to the appropriate
Second parliamentary committee (Committee stage. If
passed at this stage, referred back to the
Reading Committee Commons/Senate for Report Stage)
Stage Report Stage: Debate on principles and details of
Third bill; vote on any amendments proposed by
Third Reading: Vote is taken o entire bill.
Chamber of Royal Assent: Governor General signs the bill,
Royal making it law.
14 – Prorogation Revisited: Eugene Forsey on Parliament and the Governor
In this document, Helen Forsey refers to her father, late Senator Eugene
Forsey, to express her opinion that the role of the Governor General should not be
overstated. The power of the Governor General, in Forsey’s eyes, is nothing beyond
symbolic. In the case of dissolving parliament, the Governor General should not
interfere because doing so would prevent “the House of Commons from performing
its ‘most essential function’: deciding who should govern” (page 87).
If no party gets a clear majority in election, Forsey states that the Governor
General should do nothing. There are two alternate options: a) the PM can resign in
which case the Governor General sends the leader of the opposition and asks him to
form a government or b) the PM can meet the new House of Commons. If it supports
him, he remains in office but if it defeats him, the Governor General sends for the
leader of the Opposition. Even so little as delaying a vote in the House, as Stephen Harper wanted,
would be going beyond the rightful powers of the Governor General.
16 – The Rise of Court Government in Canada
This article argues that the Cabinet, along with Parliament, is being
“bypassed” in Canada, meaning it has lost much of its authority. Court government
has taken root in Canada, meaning that power resides with the Prime Minister and
his selected “courtiers.” In other words, most of the power in Canada now comes
from the Prime Minister. This is because in order to pursue large initiatives, the
Cabinet is somewhat useless to the Prime Minister; instead, the Prime Minister
needs a group of carefully selected individuals in key positions to push the agendas.
For example, Trudeau established an ad hoc group of officials at the centre to pursue
his 1983 peace initiative “largely because of the scepticism of the Department of
Brooks Chapter 6: Charter of Rights and Freedoms (Week 7)
In essence, the charter entrenched various rights and freedoms into the
Courts used to be reluctant to question the authority of an elected body of
representatives. Their involvement was in most cases limited to deciding
under whose (provincial or national) jurisdiction a charter case fell. This was
changed following the institution of the charter.
The charter introduced the notion of Constitutional Supremacy at the cost
of Parliamentary Supremacy.
The Charter placed these rights for the most part beyond the reach of the
government, and as such they can only be limited under the terms of section
Individuals as well as special interest groups have increasingly turned to
courts by ways of direct charter challenges in order to induce favourable
legislation, instead of turning to the legislature itself.
The role of the judiciary is to interpret the constitution, the addition of the
CRF expanded the influence of the judiciary, because it expanded the
Section 7 states that everybody has the right to life, liberty and security of
person, and the right not to be deprived thereof. This defence is commonly
used when dealing with abortion. Henry Morgentaler and other supporters of
abortion claimed that security of person defended a woman from
government infringement over her body. Critics of abortion stated that the
fetus, conversely, had the right to life. Thus far the court has not deemed
abortion illegal, but it has not been codified as a legal practice either, causing
it to still be publically debated even today. A brief History of the Pre-Charter Era 1867-1981: Before the institution of
the charter, rights issues had a comparatively small role in Canadian politics.
The Constitution Act of 1867 contains very few references to the rights of
Canadians. The rights of Provincial government vs. the rights of the national
government on the other hand were laid down in great detail. Because the
courts remained faithful to the principle of Parliamentary Supremacy they
were reluctant to strike down laws created by an elected legislature. The
result was that if you hoped to have any success with a rights claim, it had to
be packaged as an issue concerning Federalism. The other aspect that
allowed rights to keep such a low profile was the public perception of rights.
The public believed that the issue of rights was best left up to the legislature,
the common law, as well as a vigilant public (this is based on the system
Canada inherited from Britain). Gradually however people began to question
whether this approach to right was good enough (between 1940-1950).
People began to wish for a Bill of Rights which would constitutionally protect
one’s rights and freedoms. The problem with the BOR however, that in order
for it to become entrenched, it would have to be agreed upon by all
provinces. John Diefenbaker’s government therefore opted to pass the BOR
as a statute, which was not constitutionally binding. Because of this, the
Supreme Court continued to refrain from striking down legislation
conflicting with rights issues. There were some exceptions, but generally
very little changed in terms of rights protection.
The effects of the Charter have been dramatic. One very important result of it
was that rights cases brought forward grew on an explosive level, with the
first couple of years averaging over 1000 rights cases. The evasiveness with
which rights cases were dealt with before (federalism argument) was
abandoned, and rights cases were faced head on, in court rooms on the basis
of the charter.
Though Parliament arguably lost some of its power with the institution of the
CRF, Section 1 and 33 of the charter serve to maintain some aspect of
parliamentary supremacy over the courts and the charter.
Section one states that the rights of the charter are subject to limitations,
assuming these limitations are demonstrably justifiable in a free and
democratic society. The test to establish reasonable limits is the Oaks Test.
Section 33, the notwithstanding clause, allows for parliament to declare that
a law shall operate, even if the supreme court decides it interferes with
section2 or sections 7-15. This was a necessary compromise on the part of
Ottawa, for many provinces would not have agreed to the Charter without it.
Despite its importance in entrenching the charter, section 33 has hardly been used in practice. In its most famous case, Quebec’s use of section 33 to allow
French street signs (bill 101) the infringement on citizen rights is very low.
Governments are reluctant to use it, because they give the impression of
infringing on the rights of their citizens, which few want to stand or be
Public opinion of the charter of Rights and Freedoms is very high, even in
Quebec. This is attributed to the fact that people are prone to trusting judges
more than they do politicians. Politicians are perceived as more corruptible
and less trustworthy. Contrary to popular belief, however, most charter cases
deal with the rights of criminals (right to fair trial,...).
Criticism of the CRF: Certain Critics believe that the charter has given far too
much power to the courts. Because of the vague wording of the constitution,
the judges are believed to impose their own beliefs upon the nation, without
remaining impartial as they ought to.
Liberal critics often believe that the charter allows for corporations (and
other special interest groups with powerful resources) to get their will, as
they will be able to finance expensive litigation, whereas interest groups that
really require support will be unable to support the legal fees.
Charter of Rights and Freedoms
The Charter protects several rights and freedoms
The Canadian Charter of Rights and Freedoms is part of Canada‟s Constitution. If a
court decides that a law, or part of a law, or an action by a government actor or entity,
violates the Charter, that law, or action, is not valid - unless the Canadian Parliament or a
provincial legislature uses section 33 (the notwithstanding provision of the Charter) to
say that the challenged law operates in spite of the Charter. (Details of the
“notwithstanding clause” are provided later in this script). As well, the Charter controls
the actions of state officials such as the police. The Charter guarantees the following
freedoms and rights:
Fundamental freedoms – section 2 guarantees freedom of:
o peaceful assembly
o conscience and religion
o thought, belief, opinion, and expression, including freedom of the press
and other media
Democratic rights – sections 3, 4, and 5 cover the right to vote and the maximum
time between elections Mobility rights – section 6 guarantees to Canadian citizens and permanent
residents the right to live and work anywhere in Canada
Legal rights – sections 7 to 14 contain the rights to:
o life, liberty, and security of the person
o be free from unreasonable search or seizure
o not be arbitrarily detained or imprisoned
o be informed promptly of the reasons for any arrest or detention and be
released if the reasons are not valid
o have a lawyer, if you are arrested
o a fair and public trial within a reasonable time, by an impartial tribunal, if
you are charged with a crime
o not give evidence against yourself
o be presumed innocent
o be free from cruel and unusual punishment
o be granted reasonable bail if appropriate
o a court-appointed interpreter
Equality rights – section 15 ensures equal benefit and protection of the law
without discrimination based on personal traits such as race, national or ethnic
origin, colour, religion, sex, sexual orientation, age or mental or physical
Language rights – section 16 makes English and French the official languages of
Canada. Section 23 gives minority language education rights in certain
Other sections deal with enforcing Charter rights and freedoms, whom they can be used
against, and how courts have to interpret the Charter.
Section 1 allows reasonable limits on Charter rights
Charter rights and freedoms are not absolute. The Charter and the courts recognize that
governments can make laws in the broader public interest, even if a law violates a Charter
right or freedom. In such a case, a court will consider if the government can justify the
violation under section 1. This section says that Charter rights and freedoms are subject
to reasonable limits prescribed by law as can be demonstrably (clearly) justified in a free
and democratic society. A court may allow a violation of a Charter right if the
government can meet this section 1 test. But section 1 applies only to written laws, not to
government action, because it requires any limit on a Charter right to be “prescribed by
law.” So when government action violates the Charter, section 1 does not let the
government try to justify the violation. The action is unconstitutional.
The “notwithstanding clause”
The federal and provincial governments can override specific Charter rights in certain
situations. They can say that a law operates “notwithstanding” (in spite of) some Charter
rights. So far, governments have used this power only rarely. The Charter controls government, not the private sector
You can‟t use the Charter to challenge every possible violation of your rights. The
Charter controls government laws and other government actions. It doesn‟t control
private citizens, businesses, or organizations. Before you can claim the Charter‟s
protection, you must show that the government, or some agency very closely connected
to government, such as a school board or labour-relations board, violated your rights. If a
private individual, organization, or company violates your rights, you may be able to
complain under the BC Human Rights Code or the Canadian Human Rights Act.
Enforcing Charter rights
Canadian courts interpret and enforce the Charter. The courts have described themselves
as the guardians of the Charter. In that role, judges have the power to strike down and
invalidate laws or other government actions. They will do so if necessary to defend a
protected right or freedom. If you think a provincial or federal law or action violates your
Charter rights, you can ask a court to do several things.
What a court can do depends on what you ask for. For example, if you say that a law
violates the Charter, a court will decide if the law actually does violate the Charter. If the
court finds a violation, the government can try to justify the violation under section 1.
You may ask a court to declare that your rights have been violated or to give you a
specific remedy. In criminal cases, for example, the accused person can ask the court to
end the trial or to exclude evidence obtained in violation of the Charter. Or you may ask a
court for a general remedy not specific to your case, such as striking down a law entirely.
The specific steps are as follows:
First: was your Charter right violated?
You have to show the court that one of your Charter rights was violated. This usually
means persuading the judge that the law or government action violated a specific Charter
right. For example, you might complain that a law restricting what signs you can put in
your window violates freedom of expression. But even if you prove a violation, Charter
rights are balanced against the rights of others and the interests of society, as explained in
the earlier paragraph on reasonable limits under section 1.
Second: can the government justify – under section 1 – a law that violates the
If a court finds that the government violated your rights, the next step depends on what
caused the violation: was it a written law – or action by the government or a government
actor. If government action caused the violation, the government does not get a chance to
justify it under section 1. In this case, the court just decides the right remedy (which the
next section explains). But if a written law violated your rights, the court decides whether
the government can justify the violation under section 1. Is the violation reasonable and
justified in a free and democratic society? To decide that, the court looks at several
things, including whether the government has an important objective in violating your
right. Specifically, a court will ask if the government acted reasonably in achieving its
objective. If the court finds that the government‟s objective is important, the court must
decide if the government is acting in a reasonable and justified way to achieve that
objective. The Supreme Court of Canada says this usually depends on the answers to
three more questions:
1. Are the means that the government used to achieve its objective rationally
connected to that objective?
2. Could the government have achieved the same objective in some other
way, without violating anyone‟s rights or freedoms, or violating them to a
3. Is the government‟s objective important enough – and are the benefits of
the law significant enough – to justify violating a Charter right?
The government must prove that the violation of the Charter is reasonable under section
1. Often, the government tries to show that the law‟s objective is important to Canadian
society, and that the violation of Charter rights is minimal.
The more severe the violation, the harder it is for government to justify it. Only after the
court considers all these things, can it decide if you deserve a remedy for the Charter
violation. Charter cases can be complex and hard to resolve because courts have to
consider and balance many competing interests. The court must go beyond the narrow
facts of one case and consider the competing interests in relation to a law and how it
operates for society.
Individual and broad remedies if Charter rights violated
If you prove a violation of a Charter right, and the government cannot justify it under
section 1, the next question is what kind of remedy or consequence is appropriate.
Different kinds of remedies apply to different types of cases. Section 52(1) of the
Constitution Act, 1982 says that any law inconsistent with the Constitution is of no force
or effect. So a court may declare that a law is unconstitutional. This is what the news
media mean when they talk about a court striking down a law. In such a case, a court may
“suspend” its declaration to give the government time to make a new law that will be
In other cases, an individual (personal) remedy is necessary. Section 24 of the Charter
allows a person whose rights have been violated to apply to a court for a remedy the court
considers appropriate and just in the circumstances. The Charter gives courts a lot of
discretion about the kind of remedies they can order if a Charter right is violated.
The type of remedy a court gives normally depends on the type of government action that
violates the Charter. If a government official took the action – for example, a police
officer conducted an unreasonable search – the court will give an individual remedy that
helps just the victim of the search. (In that example, the court may say that the drugs
found during the illegal search can‟t be used as evidence in the criminal trial. This helps
the accused person, but it doesn‟t change the law for anyone else). In other cases, a broad remedy, such as striking down the law, may be necessary. For example, if the
government passed a law that discriminated based on sex, the court would give a remedy
that helps everyone affected by the law.
Usually, when someone illegally interferes with your rights, you can sue them to recover
any losses you suffer as a result. But this does not help someone charged with a crime
after an illegal search or after they've confessed to a crime without being told of their
right to speak to a lawyer. In this type of case, a court can exclude evidence in a criminal
trial if the way it was obtained violated a Charter right. A court will exclude evidence
only if the accused person can show that using the evidence would bring the
administration of justice into disrepute.
In other cases, the court may be able to do something else, like stop a prosecution, order
one side to pay the other side's legal costs, or declare that certain rights were violated.
The court will always decide what is fair and appropriate depending on the facts of the
Lecture Notes – Charter of Rights and Freedom
Guideline for the lecture:
1) The Charter of rights and freedom + the constitutional order
2) The Charter of rights and freedom, power + the political
3) Positive rights vs. negative liberties
4) Equality rights
5) Critics of the Charter of rights and freedom
How does the Charter legalise rights Political and social issues once they become legal issues, they become
very technical, the courts are there to determine whether they are in line
with the law.
Judges are unelected, they are unaccounted.
The rights contribute to legalising
We have had an Americanisation of the charter of rights and freedom
Laws in Canada reject hate speech, however it conflicts with the law of
freedom of speech
You can say bad things about any person-religion however you can`t say
fighting words. E.g. let‟s kill them
Having the Charter challenges parliamentary supremacy
How does the Charter affect power?
1) It transfers power from the legislators to individuals and groups. (Downwards
2) Legislator power to Judicial
3) Impact on public`s political conscious
4) Makes the government much more conscious about passing laws, it has to be
charter proofed, so it can`t be undermined later. It also has to be line with what
the courts say.
5) How interest groups behave, it affects them. Student union groups can now use
courts to effect the constitution rather than going through politicians-elections. So
we don‟t have to rely on them as much
6) Non territorial objectives. When the Supreme Court rules on a law it goes into
effect everywhere. (Quebecers do not support the Charter of rights and freedom.
For them the charter is a threat to their cultural rights.)
Positive Rights vs. Negative Rights
Negative liberty; section 2 of the charter, free of government restriction
Positive right; provided by government, entitled by the government
The difference between the two is that liberties are infinite; they do not cost the
government any money.
Positive rights on the other hand cost quite a bit of money. The government is not
a bottomless pit. If you cannot afford an attorney one will provide for you, you have the right to an
interpreter, you have the right to stay silent. (This is a positive right)
Section 15, prohibits discrimination
The charter does not apply to private relations
Real threat to equality of right is in private relations. Human rights commission
A person can put up a sign on his apartment door saying ``no women allowed``,
however the government cannot do this and businesses and services cannot do it
either. They have to consider people`s equality rights.
Discrimination, men have won more cases than women. (in courts)
Charter of rights and freedoms has been used in a negative way as well.
Critics of the charter of rights and Freedom
Courts have become a new political arena to pursue your interest
Casts a shadow over important elections, political representatives and essentially
Only lawyers have the power to act in court. They have a monopoly in court to
pursue their political objectives.
Nobody will run an election in support of gay rights because they know they will
Left wing argument is that it is too fixated on negative liberties rather it should
focus more on positive rights.
Only the rich have the ability to pursue cases in the charter of rights and freedom,
because they are the only ones who can afford lawyers.
Right wings don`t like how people have used the charter to pursue abortion and
For leftists the charter sees that it only benefits corporations.
Judges are not competent to decide on individual decisions
Who are these Judges? They have privileged backgrounds, how can they identify
with certain issues such as poverty and prostitution.
If women represent more than 50% of the population, then why are only 15% of
the judges‟ women?
Benefits only certain ethnicities
However even the politicians are mostly men, Anglo-European, middle aged and
middle class. (This is a counter argument). Week 9 Reading; Brooks – Chapter 6
In reality no rights or freedom is absolute. There are two reasons for this;
1) Rights and freedoms may collide, necessitating some compromise.
2) No right can be absolute, because to treat it as so would be impractical.
Coming to terms: What do rights and Freedoms mean?
Constitutional experts usually reserve the term rights for those individual
and group entitlements that are considered so fundamental to human dignity that they receive special protection under the law and usually under
the constitution of a country.
Freedoms involve an individual’s liberty to do or believe in certain things
without the restraint of the government. Whereas the defence of rights often
requires some government action, the protection of freedoms requires that
government refrain from interfering in certain matters.
Rights suggest an active role for government, freedoms a limited one
Civil Liberties or Civil Rights are terms sometimes used to refer to all basic rights
and freedoms of citizens. Under the influence of the United Nations’ Universal
Declaration of Human Rights, the term human rights has become the more
commonly used designation for this bundle of rights and freedoms.
Included among them are the following;
Political Rights/Fundamental freedoms: These include freedom of
association, assembly, expression, the media, conscience, and religion, and
the rights to privacy.
Democratic Rights: Among these are the rights of all adult persons to vote
and stand for public office. Requirements that elections periodically be held
and that the law apply equally to those who govern and those who are
governed are also important democratic rights.
Legal Rights: These are essentially procedural rights intended to ensure the
fair and equal treatment of individuals under the law. They include, inter alia,
the right to due process of law, freedom from arbitrary arrest, the right to a
fair hearing, the right to legal counsel, and the right not to be subjected to
cruel and unusual punishment.
Economic Rights: Although they usually are not listed as a spate category of
entrenched rights, economic rights occupy an important place in all capitalist
democracies. They include the right to own property and not to be deprived
of it without fair compensation, the right to withhold one’s labour, and
freedom of contract.
Equality Rights: This is the most recent and probably the most controversial
category of rights. The American constitution the first modern constitution to
include an entrenched guarantee of equality rights refers only to every
person’s right to equal protection of the laws. The more recent tendency,
however has been to enumerate the proscribed bases of legal discrimination,
such as race, religion, ethnicity, gender, and age. Canada’s Charter also
includes mental or physical disability and has been interpreted by the courts
to prohibit discrimination based on sexual orientation. Brooks warns that this classification should be seen as a general guide to the charter
of rights and freedoms. Due to the imagination of lawyers, the complex
circumstances of particular cases, and the inevitable overlap that exists between
different rights and claims, the basis for a particular right may be found under what
appears to be an unrelated heading.
On the Origins and Meanings of Rights
Rights, like a society’s notions of justice, are constructed out of concrete historical
circumstances. The rights that are claimed in present day Canada and the rights that
emerge around these claims and counterclaims are very different from those of even
a generation ago.
1. Rights come from political struggles. A claim made by an individual or a
group will be expressed as a right only when it is denied or placed in
jeopardy by the words or actions of some other party. For example, the
claim that a woman has a right to abort her pregnancy arises because of legal
and practical restrictions on access to abortion.
2. Political Struggle is a necessary condition for rights claims. It is not
however a sufficient condition. Only some political conflicts acquire the
charter of rights issues. To be recognised a rights claim must be successfully