making and evolution of the charter

Question 1

Two basic purposes for the charter

Answer 1

1. National unity

2. Rights protection

Question 2

• What does it mean to be constitutionally entrenched

Answer 2

• Changes the institutional dimension of the separation of powers
• Legislature now a very different position -> these rights can’t be modified by ordinary legislative process

Question 3

• The threat to national unity:

Answer 3

effort to redistribute division of powers from feds to provinces, a thirst for more provincial power/representation in national institutions by Quebec and Western provinces
- Demands of Quebec focused on language issues

Question 4

• Charter presented a creative way of responding to crisis of thirst for provincial power

Answer 4

unifying effect of Canada while still recognizing some of these demands (language rights)

Question 5

• Unifying effect/feature of Charter

Answer 5

every Canadian, no matter where you lived in the country, protected from gov authority in a certain way

Question 6

why did the provinces think charter would limit their power

Answer 6

charter would have centralizing influence, only its redistribution of power wouldn’t come from redistribution of division of powers, but come from redistribution of powers among separation of powers, moving power from the democratic branches to the judicial branch

Question 7

how did Trudeau respond to centralizing element of charter

Answer 7

o Centralizing element of aggregating power in judiciary, just the way the system was organized.

Question 8

how was the Charter going to be more effective rights protection?

Answer 8

It could not better protect rights but guarantee rights

Question 9

what was the Canadian bill of rights

Answer 9

looked like the charter except it was not constitutionally entrenched. Was a statute like any other

Question 10

Problem with The Bill of Rights

Answer 10

• Lacked entrenchment, could be amended
• Hardly binding on federal government, judiciary refused to enforce the law- refused to declare any federal law in violation of the statute, and thus wouldn’t strike it down

Question 11

Why was The Bill of Rights statute so ineffective in rights protection?

Answer 11

o Court not comfortable with idea of using one statute to strike down another. Judicial culture of reluctance

Question 12

Charter also presented an ideal opportunity for?

Answer 12

an ideal opportunity for patriation of the constitution - let us change our constitutional culture

Question 13

Sr Trudeau, could not get provinces to agree on constitutional reform on the patriation of the constitution, so he…?

Answer 13

said: fine, I will do it myself, I will go at it alone, threatens to take case for patriation and Charter directly to British parliament, without bothering to ask one premiere (unilateral action)

Question 14

result of unilateral action by Sr Trudeau?

Answer 14

What did the provinces do? They decide to bring a case challenging Trudeau in the courts

Question 15

what question do provinces put before the SC in the patriation reference? why was this strategic?

Answer 15

whether agreement of provinces is constitutionally required to amend the constitution?
- in the ambiguity of the phrase “constitutionally required” - wanted to leave it open for the court to decide if unilateral amendment was contrary to the constitution legally, or politically

Question 16

what did the majority of the court decide in the patriation reference? result?

Answer 16

decided that unilateral action was legal, but its contrary to constitutional convention. Contrary to political morale
- judgment pushed govs back into political negotiation

Question 17

Constitution Accord?

Answer 17

Agreement that was finally forged between the federal gov and the provinces: the accord

Question 18

what did they agree to in the Constitution Accord?

Answer 18

• First, patriation (The Canada Act)

- agreed to charter of rights and freedoms

Question 19

The consequence of the patriation of the constitution

Answer 19

s52 says that the constitution is the supreme law of Canada

- Any law inconsistent with it is of no force or effect

Question 20

• S24 of charter

Answer 20

anyone whose charter rights have been infringed or denied may apply to court and obtain such remedy as the court considers just and appropriate

Question 21

S52 and s24 mark

Answer 21

mark the death of the parliament and its supremacy, and the rise of the judiciary

Question 22

s. 33 of the Charter (Notwithstanding Clause)

Answer 22

• Legislature retains power to validly enact a law that violates charter …. Provided that they tell you that they are doing it

Question 23

Most freq user of s33

Answer 23

Quebec -> every piece of legislation came with a generic clause

Question 24

Ford v. Attorney General of Quebec issue? what was argued?

Answer 24

Is common use of s.33 constitutional?

- Argued that such routine use of s33 was invalid - undermined entire purpose of the clause

Question 25

Ford v. Attorney General of Quebec reasoning

Answer 25

Text:
• Gov had authority to do it

Purpose:
• Argued point of the clause was for the declaration to mean something to public and legislature so they can appreciate the seriousness of the act and react democratically and reflect when the gov declares violating rights as legitimate and therefore common use undermined the purpose

But the SCC ignored the purpose argument and stuck to the text

Question 26

As a consequence of ford case case, why are we left with ambiguity about what the nonwithstanding clause represents

Answer 26

• For some people, it’s a mark that there is continuing parliamentary supremacy in this country. When push comes to shove, s 33 they can override the judiciary
• For others, reflects a new and different rights consciousness (, plural interpretation of rights, some coming from legislature and some from judiciary - makes it a more effective rights protecting environment to be able to put responsibility on all institutions of gov to protect rights)

Question 27

What are the way controversies of the charter have been claimed moving from its origin

Answer 27

• Fearful that Charter politicizes the judiciary

- Fearful that Charter judicializes politics

Question 28

Fear that Charter politicizes the judiciary

Answer 28

Judges will start to act in, and through a political ideology in the resolution of these cases

Question 29

Fear that Charter judicializes politics

Answer 29

Not only that we will make our judges into politicians, but that we will make our politics into law