Charter of Rights Flashcards
Where is the charter of rights contained and is it entrenched
contained in the constitution 1982 and is entrenched
Inconsistency Clause
judiciary to make decisions to determine inconsistencies if it does not follow constitution
Entrenched Constitution Interpretation
Certain provisions of constitution are beyond normal control of either federal parliament/ provincial legislature, difficult to change and requires large process
Entrenched (Charter of RIghts)
- who has last word
- what is it subject to (3)
- how is it amended?
Judiciary has last word when interpreting, subject to constitutional amendment, reasonable limits, and notwithstanding clause. Only amended by formal constitutional process
Who determines inconsistencies of Charter
Judiciary determines this
what law or court is chart part of and what if it doesn’t measure up
part of supreme law and if it doesn’t measure up then it is of no importance or effect
Why does the charter give so much power to the judiciary? (2)
Determine if something measures up and interpret inconsistencies
4 Main Vague Charter rights
freedom of conscious religion, of thought, of association, and mobility rights
Who has the last word of the Charter and why is it so significant
Judiciary has last word to determine meaning and application and then it becomes binding. This is at both provincial and federal level
Judiciaries power with the charter and remedy
judiciary can create any remedy if charter right is violated and without limitation
2 Limitations of the charter
Reasonable Limits Clause
Notwithstanding Clause
Reasonable Limits Clause
in preamble, up to judiciary to identify what those reasonable limits are free and in democratic society
Notwithstanding Clause
put in a statute so charter does not apply and parts are inoperative, limited to 5 years so can be reenacted
Notwithstanding Clause: Does it preserve power and what bodies?
preserves power to parliament and away from legislature
Ian Restall’s paper toward the Charter and constitution (main idea)
It is democratic and a sharp departure to Canadian Law, can be seen as revolutionary and inappropriate
Ian Restall’s 1st Premise of his views toward the charter
Judiciary is not electorally responsible to any constituency. Erodes principles of parliamentary supremacy and democracy….left with system of arbitrators and judges making decisions who have not been elected in as they are appointed
Ian Restall’s 2nd Premise of his views toward the charter
Has unknown and potential radical impact. Judges have never been handed so much responsibility and power with little analysis and subtle view of what was being done.
Ian Restall’s 3rd Premise of his views toward the charter
violates constitutional and cultural principle of federalism. It centralizes and homogenizes, creating generalized national cultural standards impacting areas formerly under provincial jurisdiction
Ian Restall’s 4th Premise of his views toward the charter
Political Culture Revolution: charter is inconsistent with basic political, cultural and philosophical nature of the country. It simultaneously a subtle homogenizing, centralizing and Americanizing influence.
