Canadian Politics - The Charter of Rights.docx

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Political Science
Christopher Cochrane

Canadian Politics Part 8: The Charter of Rights Key Terms: Limited Government Constitutional Supremacy The Constitutional supremacy means that the Constitution is supreme over the parliament and that the parliament can exercise its function being only within the bounds of the Constitution. Constitutional supremacy is possible only when the constitution is written and rigid. The constitutional supremacy is also called judiciary supremacy in the sense that the judiciary the highest court of the land is supreme over the legislature. In 1982, with the adoption of the Charter of Rights and Freedoms, part of the Constitution Act, 1982, the Charter essentially replaced the Bill of Rights, using much of its language in the sections on fundamental freedoms and legal rights, but going beyond it to include democratic, linguistic, mobility, egalitarian, and limitedAboriginal rights. Trudeau wanted to remedy the deficiencies in the Bill of Rights. But he was also determined to entrench official bilingualism, as well as official minority- language education rights across the country, in an effort to undercut Quebecs claim that it represented French Canada. Moreover, Trudeau hoped to counter centrifugal forces throughout the land and pressures for general decentralization to the provinces by creating an instrument that the courts could use to cut down self-serving provincial laws. As a national symbol, the Charter would also serve to increase the allegiance of all citizens to the national government. The Charter is generally a much stronger document than its predecessor. Besides being broader in scope, the Charter applies equally to both federal and provincial governments, and being entrenched into the Constitution, it is difficult to amend. It sates very clearly that the courts are to invalidate any government actions or legislation that they feel are in conflict with the provisions of the Charter. Bill of Rights (Canada): an act of Canadian Parliament passed in 1960 that outlined the basic civil liberties of Canadians but whose defects caused judicial confusion and limited the bills effectiveness. Violations of civil liberties that did not also offend the division of powers or rule of law gave the courts little discretion. For example, in 1903 case that concerned denial of the vote toAsian in British Columbia provincial elections, the courts ruled that such electoral matters were entirely within the jurisdiction of provincial politicians. Neither did Canadian Blacks find any satisfaction in the courts when they challenged discriminatory practices. Although the federal government was generally more sensitive to rights and freedoms than the provinces were, its record left much to be desired, especially in the case of Aboriginals, women, radical speech, and minorities of various kinds, including its treatment of citizens of certain ethnocultural origins during the two world wars. Ottawas internment of Canadian citizens of Japanese extraction during the Second World War proved both that the federal government was not above reproach and that the courts could do nothing about it. Thus, before 1960, both federal and provincial politicians were guilty of violating civil liberties. This fact and the realization that the courts could rarely be counted on to invalidate such actions persuaded John Diefenbaker to enact the Canadian Bill of Rights in 1960. He was also influenced, as wee many other states about the same time, by the United Nationsadoption of Universal Declaration on Human Rights. The Bill of Rights therefore inaugurated the second era in the protection of rights and freedoms in Canada. The documents apparent aim was to allow the courts to invalidate legislation that they found to conflict with the Bill of Rights, but if so, this aim was not clearly articulated. The courts were never completely certain if they had been given this power or not. Other serious gaps in the bill were that is applied only the federal government, not to provinces; that it allowed legislation to be passed that overrode the bill, as long as this was acknowledged (not withstanding clause); that as an ordinary piece of legislation, the bill could be amended when it might be needed most. Not surprisingly, the courts made limited use of the Bill of Rights. Only once, the Drybones case of 1970, did they decide that a clause of an act violated the Bill of Rights and was therefore inoperative. The Bill was more useful in clarifying legal rights and was referred to in several cases to fill in gaps in such definitions as what was meant by the right to counsel, the rights to an interpreter, and the right to a fair hearing. Several other cases arose regarding violations of rights and freedoms within federal jurisdiction, but in each case the Court found a way around applying the Bill of Rights. Provinces occasionally violated civil liberties in the post-1960 period, too but the Bill of Rights was of even less assistance in these cases. R.v. Drybones [1970 ] S.C.R. 282 Drybones, a native, was found intoxicated in Yellowknife, while being away from the Indian Reserve. In the area of the Northwest Territories he was in, there were no reserves. He was convicted for this offence, by s.94 of the Indian Act. It held that the fact that there were no reserves was irrelevant. Drybones entered a guilty plea when he was first arraigned, though given he spoke no English, the territorial court, on appeal, decided to allow him to withdraw such a plea, as he probably could not fully understand what he was doing. So the appeal proceeded as a trial with a plea of not guilty. Drybones argued that s.94 of the Indian Act infringes the right to equality before the law, because it makes him guilty of an offence for conduct that would not be punishable if committed by a non-Indian. Drybones was than acquitted by the territorial court, which raised the issue that s.94 of the Indian Act had been deemed inoperative because of the Bill of Rights. Bliss v. Canada (AG) [1979 ] 1S.C.R. 183 Stella Bliss had to leave her work due pregnancy four days before giving birth. Due to her situation, under the Unemployment Insurance Act she was not entitle to full benefits under s.30 of theAct, but rather she was subjected to s.46 which denied her benefits for a period of six weeks after childbirth. Bliss challenged the limitation of benefits under s.46 as a violation of s.1 (b) of the Bill of Rights which protected against discrimination based on sex and ensures the right of the individual to equality before the law and the protection of the law. Bliss claimed that the law violated her right to equality before the law. The employment tribunal rejected her claim; however on appeal to the Supreme Court of Canada she succeeded, but at the Federal Court ofAppeals the decision was overturned. The Judge at the Supreme Court of Canada held that the Unemployment Insurance Act was valid and did not violate the Bill of Rights equality provision. The Judge said that Unemployment InsuranceAct was a complete code that took into account the interests of women, also the Bill of Rights guards against sex discrimination; in this case the discrimination was not against women but pregnant people. The Judge rejected the argument that s.46 denied equality before the law and found that the Unemployment InsuranceAct was perfectly valid. Victoria Charter of 1971 (Fails): The Victoria Charter was a set of proposed amendments to the Constitution of Canada in 1971. This document represented a failed attempt on the part of Prime Minister Pierre Trudeau to patriate the Constitution, add rights and freedoms to it and entrench English and French as Canada's official languages; he later succeeded in all these objectives in 1982 with the enactment of the Constitution Act 1982. Goal # 1: Patriate Constitution Goal # 2: Entrenchment of Bill of Rights Recognizing the limitations and ambiguities of the Canadian Bill of Rights, and wanting to incorporate new kind of rights into the Constitution, several politicians, most notably Pierre Trudeau, attempted to improve it. Ironically, the midst of this quest, Trudeau invoked the War MeasuresAct in 1970 and used it not only to fight the terrorist FLQ but also to encroach on the freedom of speech of innocent, nonviolent Quebec separatists. Finally, in 1982, with the adoption of the Charter of Rights and Freedom, part of the Constitution Act, 1982, he accomplished his objective. The charter essentially replaced the Bill of Rights, using much of its language in the sections on fundamental freedoms and legal rights, but going beyond it to include democratic, linguistic, mobility, egalitarian, and limitedAboriginal rights,
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