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Chapter 6

Chapter 6 Notes


Department
Political Science
Course Code
POL214Y1
Professor
Victoria Wohl
Chapter
6

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POL 214 Canadian Government and Politics
Chapter 6- Rights and Freedoms
Expressed in uncompromising terms
! Moral absolutes ! abortion, discrimination
! Non-negotiable
In reality no rights or freedoms are absolute
! Rights and freedoms may collide so need compromise
! Oliver Wendell Holmes [American supreme court justice]
" “Right to freedom doesnt meant you can yell fire’ in a crowded
theater
" Clear and present danger test
(a) Freedom of expression may be curtailed when it posed an
immediate danger to others
! Often impractical to make it simple
! There are limits to how far, and in what circumstances the
principles of linguistic equality and minority rights should apply
Charter of Rights and Freedoms 1982
! Established the principle of constitutional supremacy
! Changed the face of Canadian Politics
! Rights achieved more prominence
! Forum for political conflict
Coming to Terms: What do Rights and Freedoms Mean?
! Individuals freedom to believe something or to behave in a particular
way is a right
! The right to fair and equal treatment by the law is often frame in
terms of the conditions necessary to ensure and individuals freedom
! Abortion
! Not watertight concepts
! Rights: 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
" Involve gov action
! Freedoms: involved an individuals liberty to do or believe certain
things without restraint from government
" Limited gov action
! Civil liberties/rights ! refer to all the basic rights and citizens
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! Universal Declaration of Human Rights (1948): human rights into
terminology
! Political rights/fundamental freedoms: freedom of association,
assembly, expression, the media, conscience and religion and the
right to privacy
! Democratic rights: to vote and stand for public office. Requirements
that elections periodically be held and that the law apply
! Legal rights: procedural rights intended to ensure the fair and
equal treatment of individuals under the law
" Inter alia : right to due process of law, freedom from arbitrary
arrest the right to a fair hearing, the right to legal counsel and
not to be subjected to cruel or unusual punishment
! Economic rights: to own property and not to be deprived of it w/o
fair compensation, the right to withhold one’s labor and freedom of
contract
! Equality rights: included homos and mental/physically disabled
! Also, language law
! Native people may be protected by law ! ‘social rights
entitlements
! Right to job, econ security, housing and adequate health care
! Environmental rights
! Michael Mandel legalization of politics
! Politics favors already established interest and serves to reinforce
the status quo
On the Origin and Meaning of Rights
! Rights are constructed out of concrete historical circumstances
! Cultural and economic factors
! Roots in political struggle
! Necessary condition for rights claims
" Must be linked tone or more of societys fundamental values
! Consequences
! Issue may be misdefined [in order to conform]
! Legal solution to a problem are desirable and possible
" You dont need lawyer to solve societal issues
Rights and Their Protection
! 1980-1981- debate on constitutional reform
! Wanted to avoid Americanization of Canadian politics
" Policy role for unelected judges and a related decline in the
status of elected legislature
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" Increase in recourse to the courts to solve political disputes
! Decisions by elected judges reflect the sentiment of the community
! Democratic mechanism
! Rights should not be interpreted independently of popular opinion
and important political controversies should not be determined by
unelected officials
! Opponents of entrenchment vs. advocates
! Advocates rights should not be subjected to the vicissitudes of
public opinion
! Difference is about how to protect the rights, not what the rights
are
" American view trust constitution and the judges who interpret
it
" British view more dubious of judge-made law and more
inclined to place their trust in the prudence and democratic
responsiveness of elected governments
The pre-Charter Era [1867-1981]
! Until the mid-10th century, rights issues had a marginal role in
Canadian politics and in legal circles
! Federalism
" Constitution Act of 1867 ! more about government rights than
about Canadians
" Courts were unwilling to overrule the authority of elected
legislatures b/c of parliamentary supremacy
! Public opinion was optimistic about the treatment of rights and
freedoms in Canada
" Assumed that common law, legislatures and vigilant public were
enough o secure it
" 1940-1950 ! started to challenge this view
(a) Violations like Quebecs infamous Padlock Law (1937)
" Protection provided under British Parliamentary government
were not sufficient in a young country facing the challenge of
absorbing large numbers or persons of diverse ethnic origins and
cultural backgrounds
(a) Supported by Canadian Bar Association
! Introduce Bill of Rights
! Snag- it would effect the power of Ottawa and the provinces
! Introduced as a statue ! now only need the approval of the House
of Commons and the Senate
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