The Supreme Court Of Canada Essay

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

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 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 legal system was influenced dramatically by the Persons case, the Napoleonic code and the Magna Carta. First, the Persons case significantly influenced the Law system as known today. The Persons case, which took place in 1926 was regarding Emily Murphy, an Alberta police magistrate, otherwise known as a judge. While judging a case, her ruling was challenged because according to the British North America Act, women weren’t considered “persons.” In order to change this, Emily Murphy along with the Alberta Famous five started the legal process to prove that women were persons in 1928. The Famous five took the government to court, first at provincial level, then the Supreme Court, however they were unsuccessful. In 1929, the women

In 1789 the leaders of the states got together to create The Constitution. The Constitution created the three main branches of our government The Legislative Branch, The Judiciary Branch and The Executive Branch. The Articles of Confederation also had played a part in creating the three branches of government. The first three Articles of Confederation helped establish what the three branches would do and who was involved in each branch. Article I created the legislative branch which includes Congress, Article II created the executive branch, which established what the President does, and what happens with new laws, Article III created the court system which includes all the lower courts and the Supreme Court.

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 Constitution was created with a strong central government, but state governments remained weak. Congress was given the power to imposition taxes; oversee trade between states, and bare military forces. A three-branch government was created to where a judicial branch monitored disputes in a federal court, and a President was head of an executive and a legislative branch. However, Anti-federalists believed in a weak central government and strong state governments, the way the Articles of Confederation was set up, and believed in strict loyalty to the manuscript ion of the

______________The framers of the consitution created a federal government with three different branches because so no one had to much power.

By adopting the Articles of Confederation, the Americans believed they were keeping a strong national government from taking control over the nation as a king would, by exterminating a national executive branch. To the people, no national power was deemed just, not wanting to be bound to the “chains of tyranny”, as they viewed the loyalists. The national government had practically no power, without being able to receive money through taxes, the federal government had to beg for money from states or borrow from other countries. The men in charge believed a more centralized government would be needed to have a success country. The resolution to a balanced power between the state and federal government was checks and balances. Checks and balances divided the federal government into three different branches: legislative, executive, and judicial. The breaking up of the branches ensures that no branch can overcome one another, resulting in equal power. After the ratification of the constitution it somewhat resembled the British government but also differed immensely by the system of checks and

On the other hand, the appointment of judges shapes Charter interpretation, forcing Canadians to reconsider the people they have given power to and to rethink the Charter’s interpreters’ authority in creating a more “just” society. Hence, while Canada may claim to be progressing in legal thought, the lack of Supreme Court checks and balances proves otherwise. Unlike the politicians

The Supreme Court of Canada uses the Canadian Charter of Rights and Freedoms to limit the scope of legislation and administrative power by implementing section one of the charter; which results in an open dialogue between the government and the courts on various legislation deemed unconstitutional. In this essay I will discuss the extent in which section one of the Canadian Charter allows the Supreme Court of Canada to dictate legislation, how they go about narrowing legislation and administrative power through the Oaks test, and the history of the Supreme Court from 1982 – present day will be analyzed resulting in an understanding of the legitimacy the courts play with such a role.

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 2013 the Supreme Court of Canada (SCC) struck down the Country’s existing prostitution laws because they violated Section 7 of the Charter of Rights and Freedoms (hereafter referred to as The Charter) as they infringed in a sex workers right to life, liberty and security, specifically because while the act of being a sex worker was not illegal, many of the aspects around it were which was deemed unjust (Perrin, 2014: 6-7). This case is important not only because of the way it effects sex workers, but because when the law was sent back to parliament to be revised the resulting law ended up being far different than the original claimants desires. This case demonstrates one of the ways Parliament and the SCC interact with each other as a

Having just broken the colonial bond to Great Britain, one of the main concerns of the founding father was tyranny. As a way to prolong the process of passing any legislation that would drastically change the country, the founding fathers created a system of government that separated power between three branches in an attempt to prevent any potential dominance of any one branch. This was done to create

The High Court of Australia will inevitably be subject to some criticism and media scrutiny surrounding their decisions on contentious cases. Whilst there are many limitations on the power of judicial review, it is within the High Court's power to override the legislation of elected governments, or declare the legislation invalid. Therefore, criticisms of High Court decisions which come into conflict with legislation made by parliament are largely unjustified.