Ch 18 - The Charter of Rights and Freedoms Flashcards
What is the purpose of the Charter of rights and Freedoms?
- To prevent democratic majorities from using political power to violate your rights
What did the Charter of Rights and Freedoms do in the CA 1982?
- Entrenched rights in the text
What do statutes that are inconsisted with the Charter have?
- No force or effect
How were civil liberties protected before the Charter?
- Politicians voluntarily respected them
What was the Bill of Rights?
- 1960, only applied to federal legislation
What is the Charter seen as today
- An important part of Canadian Identity
What was the Charter seen to help bring Canadians on to?
- Federal Government
what does the Charter expand on?
- Bill of Rights
What does the Charter apply to?
- Federal and Provincial Legislation
What does the Charter guarantee?
- Fundamental freedoms
What does the charter include for languages?
- Language rights
What are the two limits to the rights in the Charter of Rights and Freedoms?
- Sec 1, Reasonable Limits Clause
- Sec 33, Notwithstanding Clause
Explain the Reasonable Limits Clause
- Rights may be subject to limitations
What does the Reasonable Limits Clause increase?
- The role/power of the courts
What is the two stage process of the Reasonable Limits Clause?
- Does legislation violate charter right?
- Is violation a reasonable limitation to the right.
Explain the Notwithstanding Clause
- Federal/provincial parliament may ‘exempt’ law from three parts of the Charter
What three parts of the Charter can the Notwithstanding Clause overrule?
- Fundamental Freedoms (Section 2)
- Legal Rights (Section 7-12)
- Equality Rights (section 15)
What can parliament not use the notwithstanding clause on?
- Democratic rights (sec. 3-5)
- Mobility rights (6)
- Language rights
How long can legislation be exempt from judicial review for using the notwithstanding clause?
- 5 years
what does the notwithstanding clause allow for?
- parliamentary supremacy, as apposed to the courts
What do critics say about the notwithstanding clause?
- compromises the charter
What is constitutionalism?
- political power exercised according to the rules of the constitution
What is Judicial Review?
- Courts responsible for determining whether laws are constitutionally acceptable
What is a Stare Decesis?
- Judges look to constitutional documents & decisions to determine whether a law is unconstitutional
What do the critics of the charter say?
- challenge democracy by transferring power away from the legislative branch to the judicial branch
What loaded issues do critics of the charter question judicial rulings on?
- Abortion
- Medically Assistance in Dying
- Same Sex Marriage
- Drug Use
- Sex Work
What do defenders of the Charter say?
- Majority rule must be tempered by respect for minority rights
What do defenders of the charter say about politicians?
- they cannot, alone, be trusted with protection of minority rights
What do defenders of the charter say is needed?
- Judicial elite to correct ‘illiberal excesses’ of democratic majority
What do critics of the charter say it has done to change canada’s political system?
Legalized politics
- transfer power to courts
- Minority groups bypass legislature
- Most claims made by corporate interests
What do defenders of the charter say about how it has changed Canadian politics?
- Courts tend to be deferential to law of politicians
What do critics of the charter point to the rulings of judicial branches?
- conservative, reflect conservative politics of legal elite
What has the charter done for the courts?
- Made them more powerful and active players in the pre-charter era
What has increased about the courts since 1982?
- public awareness of court’s policy-making role
- attention / scrutiny to judicial appointment
What did the increased scrutiny of judicial appointments lead to?
- Appointment of Michelle O’Bonsawin
- First Indigenous SCC Justice
What 6 Big Changes has the Charter of Rights Brought?
- Limiting Police Powers
- Women & Reproductive Rights
- Recognition for Gay and Lesbian Relationships
- Linguistic Rights fro Francophones outside Quebec
- Strengthened Aboriginal Rights
- Increased Judicial Activism
