The Notwithstanding Clause : Indefensible And Unviable

n response to the criticisms of those who are anti-judicial activism, “supporters of judicial activism say such activism through judicial review is necessary because it allows the courts to step in and fill gaps in the law where minorities are not protected because of political pressures and where politicians are afraid to legislate” . This raises the argument that judges and the judiciary play a balanced activist legislative role in such a way that it protects the rights of minorities from legislation or regulation imposed by the government. Within our democratic system, legislators will pay attention to what the majority wants and they will pursue public policies, which favour the majority. This leaves minority interests vulnerable to the legislations and regulations imposed by the government. By playing an active role, the judiciary ensures that the rights of the minorities are protected and that law does not contravene with the Charter of Human Rights and the Constitution of Canada. Through this kind of judicial activism, the courts strike a balance with the legislatures role. This is not to say that the judiciary takes on the role of policymaking and the legislature, but rather that both institutions embrace what is referred to as a “dialogue” where there is a balance between judicial decision-making and legislative-executive decision making . However, according to MacKay, “it is legitimate for the courts to engage in a form of judicial policy making so long as they do

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 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 Charter is part of Canada’s constitution; the highest law of Canada, which sets out the framework for how Canada is to be governed. The CCORAF sets out those rights and freedoms that Canadians feel are necessary to maintain Canada as a free and democratic community. The Charter created several constitutional protections for individuals, which apply to all laws and government. However, each right comes with a responsibility that all citizens need to enforce to their daily lives. If all Canadians are capable of taking control over their duties, not only would Canada have a higher quality of life, but take a positive turn in citizenship and identity. The CCORAF is an effective way to address citizens’ needs and wants in society. The Charter states that Canada’s government is justified in restricting rights, only if they are necessary to maintain Canada’s incredible status. Although looked in a wider view, not many rights have been restricted in the past, and to come. Democratic, Equality and Legal rights are all various aspects in which the Charter protects the society’s freedoms and privileges. Voting is an excellent advantage Canadians receive, as not all countries have this beneficial opportunity ahead of them. Compared to other nations, Canada’s

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.

Throughout the 1950’s and 1960’s Canada achieves it’s ‘just society” by developing equal and fair rights through collective rights for some of its most affected groups. Canada achieved its goal in becoming a just society by amending the collective rights of the Aboriginals. Since Confederation the Federal

Although the Canadian government has done a great deal to repair the injustices inflicted on the First Nations people of Canada, legislation is no where near where it needs to be to ensure future protection of aboriginal rights in the nation. An examination of the documents that comprise the Canadian Constitution and the Charter of Rights and Freedoms reveal that there is very little in the supreme legal documents of the nation that protect aboriginal rights. When compared with the United Nations Declaration on the Rights of Indigenous Peoples it is clear that the Canadian Constitution does not acknowledge numerous provisions regarding indigenous people that the UN resolution has included. The most important of these provisions is the

The relationship between the Canadian government and Quebec has been in constant turmoil for years. This paper will discuss and critique Quebec’s five demands made in 1986 by the Liberal government and their current implications. Reasonable demands are ones in which a limited amount of asymmetrical federalism grants provincial sovereignty. Currently all provinces have certain guaranteed rights, however Quebec’s rights provide more autonomy. Quebec, though home to the largest population of French speaking Canadians, have asked too much of the Government of Canada. This is evident Quebec’s increased control over immigration, Supreme Court Justices appointment, and their veto on future constitutional negotiations. Conversely, the demand of recognizing Quebec as a distinct society is however reasonable and has been accommodated into Canadian society, and the ability to restrict federal spending power keeps the federal power in check. In this essay, I will discuss each demand, and argue whether or not it is reasonable.

In common law, judges interpret the law and judge apply it based on precedent from previous cases; compared to civil law which focuses on written legislature. In Canada, judges are given the chance to be activists. If a judge believes a citizen’s rights, under the Canadian Charter of Rights and Freedoms, are being violated, they are given the power to rule against the unconstitutional law made by the elected branches of government; this concept is referred to as judicial activism (Hausegger, Hennigar, & Riddell, 2015, p. 123). Judicial activism ensures the individual rights of each person are upheld, but the concept is controversial. Judicial activism is problematic because it awards an authoritarian level of power to unelected judges, which goes against Canada’s democratic ideology where elected officials decide and vote on the laws (Cameron, 2009, p. 27). I argue that judicial activism should not be a part of Canada’s judicial process because it gives too much power to the courts and disrupts the democratic process of

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.

When someone speaks of great inequalities and human rights violations, very seldom is Canada as a nation (in a broader sense,) conjured together with these thoughts. However, in reality probably some of the greatest human right violations within our time and even within the late modern period, and most concerning examples of them, can be found through looking back into Canadian history. For many this may be a surprise to hear, however for others, specifically the native population of Canada, we can assume this is well understood. Commonly known today as Indian residential schools, a great act of wrong was committed under the command and leadership of the Canadian government starting back with elementary roots through the passage of the

The inclusion of the Notwithstanding Clause in the Canadian Charter of Rights and Freedoms was an invaluable contribution in the evolution of the liberal democratic state. Not an endpoint, to be sure, but a significant progression in the rights protection dynamic. Subsequent to its passage in 1982 it became the primary rights protecting mechanism, however, its raison d`etre was as a neccessary concession, the pivotal factor allowing the patriation of the constitution. Many legislators present at the constitutional conference in 1981 opposed in varying degrees the entrenchment of a "bill of rights" in the constitution. The premier of

“Most of the rights can be exercised by any legal person, but few of the rights belong exclusively to citizens of Canada”. (Reference8). With the Charter of Rights and Freedoms the Canadian society has a clear view of human rights and freedoms, and ways to enforce these rights. If the laws or governments action violates our Charter, we have the right to ask the court to address this. “At first Canada was able to take in the disrespectful and racist actions towards us Canadians” (Reference9), also we could be imprisoned without a good reason. But when the Charter stepped in, the government or the police must have a good reason or consent from the court to take actions against us. Meaning because of the Charter the government or police cannot harm us Canadians till they have a valid reason or consent from court. Part of our rights is to have a fair and a quick public trial by an impartial court to prove us either innocent or guilty of our crime. “The Indian Act of 1876 affected first nations who had concluded treaties with Canada’s government “. (Reference10) also they banned traditional ceremonies and the people needed the government’s permission to wear traditional clothes. Later on when the charter was introduced to the Constitution, those problems were fixed. Lastly women weren’t allowed to vote till 1920, because of Canada’s Election Act which banned women from

The Charter of Rights and Freedoms protects the civil, legal, and democratic rights of civilians. It also gives the aboriginals, the long forgotten and harshly treated inhabitants of Canada, their legal rights and freedoms. If it wasn’t for Trudeau, we would be living in a non-democratic society full of prejudice and