Final Flashcards
1
Q
Politicization of Supreme Court since Charter
A
- Court has been final authority on Canadians’ rights since Charter and has gained power at expense of Parliament and Provinces, has shaped civil rights on gay marriage, abortion, etc.
- Need for majority (5 out of 9 usually) to declare decisions has put emphasis on judges and their politics, however not yet strong process of reviewing judges like in US
2
Q
How does SC exercise review?
A
- Not automatic, takes cases from interested individuals, groups, governments
3
Q
How was gay marriage achieved via the SC?
A
- 1999 Liberal majority HoC votes to uphold definition of marriage between one man and one woman
- Court rulings from provinces and SC feel that federal definition unconstitutional and discriminatory against homosexuals based on Charter S. 15 Equality Rights (although gay rights not explicitly mentioned, began to be seen as sexual equality rights)
- Court rulings thus shape public opinion, by mid-2000s Canadians begin to see gay marriage as Charter right
- Critics say courts imposed gay marriage in Constitutions, supporters say courts defend minority group that would not have gotten its way through legislature alone
4
Q
How were abortion rights achieved via the SC?
A
- 1969 abortion law depended on panel of doctors to make decision on woman’s health in pregnancy to determine whether abortion allowed
- Morgentaler violates this law by opening private clinics for on-demand abortion, jailed, loses 1975 pre-Charter challenge to law
- 1982 Charter challenge works, 1988 SC throws out 1969 law 7-2 based on violating Charter S. 7 right to personal security, another ruling establishes that fetus not person entitled to S. 7
- 1988 ruling doesn’t establish unrestricted right to abortion but says that could be better regulated by new Parliamentary law
- 1990 HoC passes similar measure to old law but defeated in Senate, issue not touched to date so no regulation on abortion
5
Q
- “Original Intent” approach to constitutions and its pros/cons
A
- Idea is that judges go by what they think framers of a constitution intended when they wrote it
- Pros: judges will not be accused of changing the constitution and imposing their beliefs on it, thus leaving this role to politicians; rulings are seen as consistent and rooted in history
- Cons: rulings can be seen as stilted and out of touch with current norms; approach assumes that judges actually know what original intent is - if not then judges exercising their own discretion anyway
6
Q
“Living Tree” approach to constitutions and its pros/cons
A
- Idea is that judges are flexible in what they think constitution currently means
- Pros: judges can update constitutional phrases to make them reflective of modern/relevant societal understandings; allows for political changes without having to go through politically difficult process of constitutional amendment
- Cons: flexibility can be hard to distinguish from “reading in” judges’ own ideologies (not supposed to be done); changes may not reflect societal understandings but instead be impose judges’ own views on society (activism)
7
Q
What is judicial activism?
A
- Can be difficult to define as judges in Canada are supposed to protect constitution if cases violate it
- Judges who try to impose personal agendas on society by making certain rulings. If a consistent pattern of this is seen over decisions over time then can say that judge is not neutral and plays political role in formation of legislation over time
8
Q
Court Party argument for activism
A
- Says that judges have tended to favor social groups since Charter (feminists, gay rights) and have helped engineer legislative landscape in favor of them
- Left wing groups have strong links to courts (“Court Party”) and as such have advantages with judges, since they have public funding for court challenges via Court Challenges Program can also build ties to politicians, public
- Biased judge rulings have created “Charter Revolution” - Charter has been interpreted to favor left wing groups and public now thinks that Charter ensures abortion rights and gay rights
- Lots of challenged legislation has been thrown out by courts (1982-1998 around 33% of Charter claimants won vs 1/7 cases between 1960-1982), thus governments forced to do many things that it may not have wanted and left wing groups have gotten their way
- Left wing groups (liberal churches on gay marriage for example) are also more often brought in during trial itself to give testimony and advice
9
Q
Major members of “Court Party”
A
- Canadian Centralists
- Civil libertarians
- Social engineers (socialists)
- Equality seekers (LGBTQ advocates)
- Post-materialists (environmentalists)
10
Q
Right wing and Quebec nationalist defenses against Court Party argument
A
- Political right is most against court party in Canada, accepts Charter but says that activism favors political opponents - so need better process of confirmation and neutral judges (idea promoted by Harper, now Doug Ford)
- Unelected judges shouldn’t throw out laws since only elected officials should be sovereign and make policy (however does right really want neutral judges or right-leaning ones?)
- Quebec nationalists (who may not be right wing) don’t like courts undermining provincial autonomy (also explains why many in Quebec didn’t want Charter in first place), prefer Quebec’s own Charter to deal with Quebec issues
11
Q
Dialogue argument against judicial activism
A
- Charter has created a dialogue between courts and legislatures where courts don’t want to necessarily diminish legislative power
- Many court rulings suggest legislative changes instead of throwing them out
- Legislatures can also tell courts that they won’t abide by certain rulings (s.33) and also often draft legislation with Charter in mind (lawyers employed to avoid challenges)
12
Q
S.33 argument against activism
A
- S. 33 can be employed to not withstand court rulings on S. 2, 7-15 for 5 year renewable periods
- Has been used by Quebec for English sign provisions and by SK in minor ways
13
Q
Other arguments against activism
A
- Courts have calmed down (less laws overturned) since initial Charter period due to stabilization of post-Charter landscape, legislation also drafted carefully around Charter
- Court rulings don’t necessarily reflect political pattern (key rulings such as Chaoulli which opened way for private health care in Quebec)
14
Q
UK model of possible judicial reform
A
- UK uses weak model of judicial review where Parliament is supreme and cannot really be challenged on direct legislation. Although EU membership complicates this, UK leaving EU and rights are still mainly domestic
- Moving in this direction would mean amending Charter to weaken court powers of judicial review (difficult)
15
Q
French model of possible judicial reform
A
- France allows proposed laws to be thrown out via judicial review and only politicians can initiate these challenges, established laws cannot be challenged
- Would require Charter amendment to adopt this process and could also amend to allow groups and individuals to also challenge proposed laws (would be difficult to amend)
