The Charter Of Rights And Freedoms

The entrenchment of rights in the Canadian Constitution comes after long experience with a system of parliamentary supremacy. The American judicial tradition of treating the written constitution as fundamental law cannot have an instant Canadian counterpart. Thus, it does not follow that the Canadian courts will necessarily claim a role comparable to that of courts in the United States, nor is it clear that the representative bodies in Canada would tolerate such a judicial assertion of power. Opposition by government bodies to the Charter have already occurred in Canada, where the Parti Quebecois government of Quebec invoked the “notwithstanding the Canadian Charter of Rights and Freedoms” clause for the purpose of protecting their language laws from attack under the charter. This report will attempt to note some of the common and distinctive features of the text of the two constitutions as well as to how they differ.

In contrast to the Canadian parliamentary system, which has remained fairly static and unchanged since Victorian times, the Canadian legal system has undergone a tremendous evolution over the last century and a half. When looking at Canadian history in depth one discovers the repeated movement to take power from the superiors or the overruling and place it into the palms of the people. As seen through examples our western law (canadian law) has slowly branched off from the supremacy of God (mosaic law), to the supremacy of the monarchy (bristish law), finally to a realization of the importance of citizen participation in the creating, governing, and administrating of the laws (Greek law).

The rights of many people versus the rights of an individual is certainly a vexing concept. Like a delicate balancing act; if one side is favoured over the other it causes a rift in the already strained relationship between the minority and majority. Evidently, the justification of taking any side must be valid, according to the theories of H.L.A. Hart. In the past, Canadian law has violated the rights of minorities; however, these violations have decreased in their severity as time has passed on. Some cases where the balance between minority and majority rights is questioned is in The Canadian Indian Residential School System, Bill 101, Equality in the Workplace and The Public Service Act.

The Canadian Charter of Rights and Freedoms is an important milestone in Canadian history. An effort through rigorous debate and compromise gave birth to this document that defines our collective values and principles by guaranteeing and protecting the fundamental rights of its citizens. Prior to the Charter, there was no gurantee in Canada that rights and freedoms would not be taken away by legislation. The Charter also allows courts to render the constitutional duty so that any decisions made are consistent with those rights and freedoms. The Charter was established firmly in “The Constitution Act, 1982”, with the declaration of this act Canada escaped from the severe practice of concept of parliamentary supremacy. The Charter has an enormous effect on court’s decision power to award justice to important and debatable issues about policies that affect public. In awarding the verdict courts are not even reluctant to rewrite laws that violate the testament of the Charter. The judges have a duty to regulate the rulings of both provincial and federal governments which, disagree with the root value of Charter.

The Canadian Charter of Rights and Freedoms is without a doubt one of Canada’s most important section entrenched in the Canadian Constitution. The Charter of Rights and Freedoms is a bill of rights enacted into the Canadian Constitution as part of the Canada Act in 1982. However, the Charter was Canada’s second attempt to protect the rights and freedoms of its citizens all throughout the country and on every level of government. The Canadian Bill of Rights, which preceded the Charter was enacted in 1960. However, being only a federal statute rather than a full constitutional document, it had no power and application to provincial laws. In addition, the Supreme Court of Canada only narrowly interpreted the Bill of Rights, therefore rarely unlawful laws were declared inoperative and continued to exist. As a result, the ineffectiveness of the Bill of Rights led to many movements to improve the protection of rights and freedoms in Canada. However, similar to its predecessor, the Charter is not without faults, and loopholes. In some cases, it has even infringed upon certain liberties and democratic rights and freedoms. In other cases, the Charter has incited conflicts between liberty and democracy and raised questions that speculate whether it is truly democratic.

The necessity to limit the rights and freedoms of Canadians is illustrated and reinforced through the governments use of reasonable limits, ‘notwithstanding clause’ to limit individual rights and freedoms, and the occasional need for the government to have power extended above and beyond the limits prescribed in the Charter.

In conclusion, I believe that the Notwithstanding Clause should be abolished because it allows our rights and freedoms to be taken away, It gives the government too much power, It gives the public no say in what the government does with this act, and finally because it doesn’t allow the courts to have a final say in the outcome of the statues made using section 33 of the Canadian Charter of Rights and

In examining the constitutional jurisprudence since 1982, it can be seen that most cases have followed along with Trudeau’s objectives of individual rights protection. However, Trudeau’s article The Value of a Just Society notes that communal rights of Aboriginal communities represent a notable exception. He defends this, mentioning that these collective rights are enshrined where “the rights of individuals may be indistinct and difficult to define.” The Canadian Constitution is uncommon in the fact that it protects cultural rights, such as linguistic and Aboriginal rights. It is important for Canada to protect these rights, as Canada is made up of many different groups of people. It was Trudeau’s desire that the constitution protect everyone equally, “without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.” By assigning rights to the individual rather than to collectives, linguistic

After the storm clouds of apartheid lifted to reveal the Rainbow Nation of South Africa in 1994, the first democratically elected government was tasked with drawing up a new constitution that would properly enshrine the human rights that had so long been denied the majority of citizens. One source drawn upon in developing the new constitution was the Canadian Charter of Rights and Freedoms, itself then little more than a decade old. It is not necessary to be a constitutional scholar to detect many similarities between the two; indeed, Canada’s pride in this connection is such that it is highlighted on the Government of Canada 's webpage on bilateral relations with South Africa, which boasts “South Africa 's 1996 Constitution and Bill of Rights draw heavily on Canada 's Charter of Rights and Freedoms”.

The courts themselves contradict the democracy that is prided and practiced all throughout Canada by amending laws without consulting parliament. Finally a citizens rights and freedoms are only conditional and can be restricted by the court under interpreted circumstances. This paper will touch upon three main characteristics that contribute to the power and controversy of judges in the Supreme Court, through the selection process, undermining democracy and conditional rights and freedoms.

In 1985, Canada implemented the Canadian Charter of Rights and Freedoms. Under Section 15 of the Charter, all Canadians regardless of their (1)“race, national or ethnic origin, colour, religion, sex, age or mental or physical disability” were officially given the right to be protected by the law, and benefit from the law without discrimination.

The Charter of Rights and Freedoms is a bill of rights granted constitutional status that was introduced in the Constitution Act of 1982 by Prime Minister Pierre Elliot Trudeau. The Constitution Act is also known as the repatriation of the Canadian Constitution. The Charter had several purposes; the first is “to outline and guarantee the political rights of Canadian citizens, as well as the civil rights of anyone who is residing on the territory of Canada” (The Canadian Charter. 1). Secondly, “It balances the rights of legislatures and courts through the ‘notwithstanding’ clause, which gives the federal and provincial parliaments limited powers to override court decisions “, while section 2 of the bill enshrines the freedom of the press, allowing the media to release controversial reports without fear of the state (Ibbitson. 2012). thirdly, it criminalized discrimination in society, government rulings and the judicial system and provides a set of ethical principles for all Canadians to follow, while promoting equality throughout the country.

In 2011, three legal and constitutional scholars, Peter Aucoin, Mark D. Jarvis and Lori Turnbull set out to write a book detailing what they believed to be obvious and egregious errors in the way in which the current form of responsible government as it was practiced in the Canadian federal government, fell short of operating within basic democratic parameters. Canada has a system that is based one the Westminster system, in which its the Constitution act of 1867 is influenced by British principles and conventions. “Democratizing the Constitution reforming responsible government” is a book that makes an analysis for the reform of responsible government in Canada. The authors believe that from the unclear rules, pertaining to the role and power of the prime minster foresees for a failing responsible government. In this essay the functions of the government , conventions of the constitution, the a proposal for reform will be addressed.

Although Canada is governed by a common law legal system, common sense doesn’t always prevail in determining how one might attempt to resolve the complexity in deciding which constitutional right should have first rights.

In the tangled web of Canadian administrative law, not only does the court consider the importance of the decision, but also places significant importance on the process through which the decision is made. Procedural fairness is defined as a procedure that is open and transparent, allowing the affected individuals to express their arguments and perspectives to support their case (Module 4). If a citizen believes that the court’s decision was not made in a fair process, they can turn to the courts and question them. However, any breach of the rules of procedural fairness is a very serious matter and is named ‘jurisdictional error’. Once it has been determined that a duty of procedural fairness is owed, it then needs to be determined what the duty entails. Courts do recognize that certain interests require greater procedural protection compared to others. Administrative law refers to laws, procedures, and legal institutions affecting the government. It is also concerned with regulating government power and governing the implementation of public programs. Administrative law addresses “the issue of whether or not governmental decision makers have acted within the boundaries established by the law they administer” (Module 6). A very important aspect of decision makers acting ethically and in the public’s interest is if the citizens participate in those decisions. “Rousseau advocated participatory democracy – meaning ongoing and meaningful citizen involvement in governmental