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Chapter 5

PO263 Chapter Notes - Chapter 5: Section 33 Of The Canadian Charter Of Rights And Freedoms, Parliamentary Sovereignty, Freedom Of Movement


Department
Political Science
Course Code
PO263
Professor
Christopher Anderson
Chapter
5

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Chapter 5: The Canadian Charter of Rights and Freedoms
5.1 What Is a Charter of Rights
Purpose of a charter of rights=prevent democratic majorities from using political power to
violate rights
Does so by entrenching those rights in the text of a constitution
5.3 Remedies
If the courts find a law in violation of the Charter, they employ a section 52 remedy
Section 52(1) of CA 1982 states that any law that is inconsistent with the
Constitution is of no force or effect
Judiciary determines whether the law in question is consistent with the Charter,
but it’s up to Parliament to decide if/how to amend that legislation in order to
make it consistent with the Charter as interpreted by the courts
Remedies outlines in section 24;
The court can strike down a law. If the law is void, then a Charter claimant cannot
be found to have breached it
If a law is generally sound other than the absence of language that would fix a
constitutional flaw, a court may add the right words to the law instead of striking it
down
1998; Alberta’s human rights law prohibited discrimination on the basis of
many grounds but not sexual orientation. Section 15 of the Charter was
interpreted by the Supreme Court as prohibiting discrimination on the
basis sexual orientation. Vriend challenged the law for failing to conform
to section 15. Instead of striking down the law, the Supreme Court “read
in” sexual orientation to its list of prohibited grounds of discrimination
Judiciary can strike down a law but delay the effect of that declaration so as to
allow the gov’n to revise legislation
In many criminal cases in which evidence against an accused was collected by
police in a manner that violated their Charter rights, a court may exclude that
evidence from trial
5.4 The Adoption of the Charter
Rights such as freedom of religion and freedom of speech were seen to be part of the
liberal democratic tradition inherited from Britain, and Canadians generally thought it
possible and desirable to trust our parliamentarians not to violate those rights
Certain issues such as the confinement of the Japanese Canadians in detention camps
during WWII and Aboriginal people not having the right to vote left many Canadians
dissatisfied with our traditional approach to the protection of rights/freedoms by the end
of the 1950s
1960; Diefenbaker gov’n introduced the Canadian Bill of Rights, but it was only an
organic statute
1970s; activists argued Canada needed a constitutionally entrenched charter of rights
Trudeau succeeded in adopting the Canadian Charter of Rights and Freedoms
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