finals Flashcards
The Constitution Act, 1982 is suggested to have fundamentally transformed -
the role of the Supreme Court of Canada.
Pre 1982
Umpire of Federalism
Post 1982
Umpire of Federalism + Guardian of the Constitution
what do the courts do
Courts patrol the boundaries between the two orders of government and ensure respect for the division of powers.
limited remedial powers:
simply determine which level of government has jurisdictional authority for the exercise of constitutional provisions.
what is the guardian of the constitution?
the Supreme Court of Canada
which constitutional provisions do the guardians of the constitution use?
section 52 of the constitution Act 1982 + section 24 of the charter of rights and freedoms
remedy of invalidation:
declaring the law in question unconstitutional and striking it from the statute books
remedy of suspended constitutionally
declaring an act unconstitutional but suspending the decision
remedy of judicial amendment
reading in or reading down a statute:
what is supreme law
the charter of rights and freedoms
the charter is applicable to…
both levels of government (provincial and federal)
the charter authorizes what via section 52 of the constitution act?
judicial review
the charter authorizes what via section 24(1)
explicit remedial powers for the courts
section 33=
parliamentary supremacy
section 52=
constitutional supremacy
section 24=
judicial supremacy
the charter of rights includes a mixture of:
individual rights and collective rights
acknowledges that rights are not….
absolute; there are reasonable limits
section 1=
reasonable limits
section 2-23=
rights and freedoms
what is the Oakes test?
A four-part test administered by courts when determining whether a statutory limitation is ‘demonstrably justified in a free and democratic society’
1. Are the legislative objectives pressing and substantial?
2. Are the legislative measures rationally connected to the laws purpose?
3. Are rights minimally impaired/least restricted?
4. Does the law achieve proportionate effects?
what is the notwithstanding clause?
Section 33, the legislative override or ‘notwithstanding clause’ allows for legislative reversal of judicial decisions by Parliament or the provincial legislature in certain circumstances.
what is bill 101?
Québec wanting French only signs.
it was struck down by the SCC in 1988.
The Canadian Charter of Rights and freedoms has two forms of equality protections:
Enumerated categories
Analogous grounds (in particular)
why can an equality rights about marriage not be challenged?
there was no definition of marriage until 2000
