The Charter Of Rights And Freedoms

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 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.

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 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 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.

The supreme court of Canada has overruled numerous laws put forward by the Harper government. In 2010, former Prime Minister Stephen Harper was opposed to the Vancouver Eastside supervised injection site. Stephen Harper took a conservative approach to the issue, he said that “we as a government will not use taxpayer’s money to fund drug use” (Rachlis, 2010). The Prime Minister did not recognize the potential benefits to Canadian society as he focused on budgeting, without recognizing the benefit to public welfare that would reduce disease, death and have a rehabilitative effect on participants of the program. Judicial decisions play an influential role in the provisions of the Constitution because their interpretation is essential to understanding and employing it. In this essay I will argue that the traditional role of the judges has evolved into having a determinative function of law, that allows judges to uphold citizen’s rights and preserve justice in Canada. Through analyzing judicial review, I will demonstrate how judge’s role is much more than an interpretation of law through exploring the idea of Charter proofing, integrating public opinion in decisions, production of common law and judicial activism that serve in creating a climate that is adaptive to new issues that may arise and free from arbitrary rule.

F.L. Morton examines the political impact of the Canadian Charter of Rights and Freedoms by comparing pre-Charter practices to post-Charter developments in five different areas: judicial behaviour, public policy, interest group behaviour, federalism, and executive behaviour. Morton presents the Charter through its continuity and change, beginning with the move away from Britain’s “unwritten constitution” and distinguishing the doctrine as constitutional supremacy that still depends on public opinion. He argues that due to the Charter’s constitutionality, Canadian courts are able to have a more active and influential role in interpreting and enforcing the listed rights which is a negative development in Canadian democracy.

The Charter of Rights and Freedoms insures the rights of each being living in Canada along with limits with legal rights, the charter was created in 1960 when it was signed into the law by Queen Elizabeth the II on April 17th 1982. The charter of rights and freedoms includes sections that have created challenges within society, for example gay marriage, marijuana, and issues surrounding the canadian health care act. Before the Charter was created rights of Canadian were protected by an assortment of laws, including the 1960 Bill of Rights, which was only part of federal government rather than

The Canadian Charter of Rights and Freedoms is a bill of rights which is a part of the Constitution of Canada, forming the first part of the 1982 Constitution Act. In general, it guarantees Canadian citizens and residents fundamental freedoms, democratic rights, mobility rights, legal rights and equality rights within reasonable limits. The Constitution Act (1982), of which included the Charter of Rights and Freedoms, was pushed by Prime Minister Pierre Elliott Trudeau in 1980 in order to enact the British North America Act (1867) as well as the Bill of Rights (1960). The enactment of the British North America Act would have allowed Canada to have its constitution completely independent of Britain; in response to the 1980 Quebec Referendum.

There lies an infamous section of the Canadian Charter of Rights and Freedoms that has been generated the greatest amount of debate in its time (The Charter of Rights and Freedoms CRF 2014). This section is known as section 33 of the charter the “notwithstanding clause” as it has gained controversy since it “emergence from a November 1981 Federal-Provincial Conference of First Ministers” (Johansen & Rosen 20012). This clause is also referred to it as the override power (CRF 2014). The “notwithstanding clause” is a legislative power that allows the Parliament or Legislature to override certain Charter sections (University of Alberta UOA 2014). Law makers can enact the clause

Some levels of the government were beginning to see the issues regarding Aboriginal policy in Canada. A positive change was made to the Constitution Act in 1982. Section 35 of the Constitution Act now provided First Nations people the protection of the Crown regarding treaty rights. According to Long & Dickason (2011), ““… Canadian Crown rather than the Crown of England was responsible for Canada’s First Nations. Lord Denning also ruled that this meant that the Canadian state was obliged to honor all Aboriginal and treaty rights” (p 270).

Latraverse writes about the promise made by the Conservative party without taking any position. She describes the promise and provides the opinion of the leaders of the other parties. The promise received negative comments from not only the other leaders but also the Canadian population. The author uses the opinion of other leader to proclaim the negative side of the legislation. This source provides an explanation of the proposition and the opinion of other leaders. Since the Liberals make a majority government, the Conservatives need the support of other parties for passing this legislation therefore the need of knowing the opinion of others. This source is relevant to my essay because it describes the promise made by Stephen Harper.

The downfall of Canada and its democracy lays in the hands of the prime minister. Second to the governor general the prime minister holds the single highest power an individual in parliament can obtain. The unrestricted power given to them, discussed in section I, represents more of a monarchy than a democracy and illustrates how Canada and its ideologies are being skewed and altered to benefit the prime minister. Throughout the paper we will examine the defective parliamentary system, addressing the specific powers that enable the prime ministers to silence Parliament. Although various arguments are made throughout the paper, the focus will be on the overwhelming evidence supporting the thesis that the prime minister has too much power. Section

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.