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Chapter 5

PO263 Chapter Notes - Chapter 5: Japanese Canadians, Liberal Democracy, Section 33 Of The Canadian Charter Of Rights And Freedoms


Department
Political Science
Course Code
PO263
Professor
Christopher Anderson
Chapter
5

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WEDNESDAY OCTOBER 24TH
CHAPTER 5
5.1 What is a Charter of Rights?
With the adoption of the CA 1982, Canada acquires a constitutionally entrenched charter of rights.
Because we are a liberal democracy, we are devoted to the protection of fundamental rights.
The purpose of the charter is to prevent democratic majorities from using political power to violate rights,
especially the rights of minorities.
5.3 Remedies
Where there is a right, there is a remedy. What happens if courts declare a law to be in violation of a constitutional
right? In most cases, if the courts find a law in violation of the Charter, they employ what is called a section 52
remedy. States that any law that is inconsistent with the constitution is in no force of effect — which mens that the
government no longer has the authority to act in the way the law provided.
The Judiciary restricts itself to determining whereto the law in question is consistent with the charter. The
Parliament decided if an how to amend the legislation so as to make it consistent with the charter.
The courts have interpreted section 24 to include a variety of remedies:
1) A court can strike down a law if the law is void.
2) The court may merely add certain words to the law to solve the problem instead of striking it down.
3) The Judiciary can strike down a law but delay the effect of that declaration so as to allow the government to
revise legislation. In some cases, impugned law cover a complex, imprint area of public policy and striking
down law would mean that the activity would no go unregulated.
4) In many criminal cases in which evidence against an accused was collected by police in a manner that
violated his or her Charter rights, a court may exclude the evidence from a trial.
Occasionally, the courts will decide that a persons rights have been violated, but will offer no substantive
remedy.
5.4 The Adoption of the Charter
Introduction of the Charter in 1982 marked the introduction or creation of a new set of rights. This is not
necessarily right because although a number of new rights were created, the Charter was primarily a new
mechanism for the protection of rights that were already established in the Canadian political tradition.
For most of its life, Canada took the British approach to protection of rights. Rights such as freedom of religion
and freedom of speech were seen to be apart of the liberal democratic tradition and Canada though it was possible
to trust our parliament not to violate these rights.
However, provincial governments were not as careful about respecting these rights as they should have been.
It was also not clear that the deferral government could be trust either. Ex. during WWII, Japanese Canadians were
forced into detention camps — a clear violation of rights.
By the end of the 1950s, Canadians became dissatisfied with our traditional, political approach to the protection of
rights and freedoms.
Rights activists in Canada began to argue that Canada should abandon its traditional approach to the protection of
rights and embrace the American idea of a constitutionally entrenched and judicially enforceable bill or charter of
rights.
In the 1960s the Diefenbaker government adopted the Bill of Rights. — recognized and declared a certain number
of “human rights and fundamental freedoms” including freedom of religion, freedom of speech, from from
assembly etc.
There was a flaw in this document: it was merely an organic statue. Two problems:
1) it was a federal statue and did not apply to acts of the provincial governments and legislatures
2) It was not even clear that it could be used to annual deferral legislation.
Courts are able to strike down one type of law only by applying or appealing to some higher law. Since the Bill
of rights was merely a statue, there was no logical reason to give presence over any other statute.
By the 1970, it was decided that the there needed to be a constitutionally entranced charter of rights that would
apply to all levels of government and that would be superior in status to all other legislation.
Within a decade, Trudeau succeeding in effecting the adoption of much broader document, the Canadian Charter
of Rights and Freedoms.
From then the charter was said to:
it entrenches most of the basic rights in included in the Bill of Rights. It guarantees fundamental freedoms, basic
legal rights, basic democratic rights and the right to non-discriminatory treatment.
Included a number of language rights and so on.
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