Lecture 1W: Intro to Canadian Charter Flashcards
Prior to the Charter, how were Canadian Rights Established?
Through the “Common Law Constitution” which was made of rights granted through judicial decisions.
What was the significance of Roncarelli v Duplessis [1959] ?
The SC held that the premier of Quebec could not arbitrarily revoke a person’s liquor license for reasons unrelated to the purpose of the legislation in question. There is no such thing as absolute discretion for the suspension of a right.
What was the “Implied Bill of Rights”?
Courts referred to the preamble of the BNA to conclude that the state cannot encroach on fundamental rights
What was the significance of Attorney General of Alberta v Attorney General of Canada [1938] ?
The SC struck down Alberta legislation that interfered w the right of newspapers to report freely on the economic policies of the government. It was held that the Alberta legislature lacked the legislative authority to enact a law that struck at the very foundation of our parliamentary democracy.
What was the Canadian Bill of Rights?
An ordinary Act of Parliament passed in 1960 enumerating some rights as fundamental, and instructing that laws shouldn’t to interfere with those rights.
What was the flaw of the Canadian Bill of Rights?
that it only applies to federal laws and so does not reach the laws of the provinces, and also that since it is only an ordinary Act of parliament it was not a part of the Constitution
What are the four fundamental freedoms set down in sec2 of the Charter?
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other communications;
c) freedom of peaceful assembly;
d) freedom of association.
What are the powers granted by sec33 of the Charter?
Parliament or a legislature only needs to insert an express notwithstanding clause into a statute and this will allow it to pass the law without worrying about the provisions of section 2 and sections 7-15. This is how a legislature usually avoids getting a law struck down by the courts. The use of this provision is restricted as the effect of the notwithstanding clause is that it expires at the end of five years and so the law has to re-enacted after this time
What is the scope of sec1?
. It subjects Charter rights to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The general limitation clause of s. 1
What are some criticisms of the Charter?
Critics of the Charter are afraid that the individual-rights focus Charter would undermine a more communitarian spirit expressed through legislative action. Moreover, there is a fear that powerful economic interests would be able to coopt the Charter framework to harm progressive state activity, undermining social justice.
