Rights And Freedoms Essay, Research Paper
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 Saskatchewan, Allan Blakeney, A preeminent liberal legislator at the time, recognized this potential document as an invitation to judicial review. He feared a conservative judiciary might hinder enlightened policies and sought authority beyond the ambit of an entrenched rights protection act. At the other end of the political spectrum opposition was in the form of an allegiance to parliamentary supremacy as expressed most notably by Sterling Lyon, the conservative premier of Manitoba. Imbedding section 33, commonly referred to as the Notwithstanding Clause, into the constitutional document alleviated these concerns to a degree that permitted their compliance. It is well established that the impetus for the Notwithstanding Clause was of a political nature. To insert this so inspired clause into an intended sanctuary from capricious legislative acts appears tantamount to allowing the fox to guard the chicken coop. Conceivably the same legislative majority that would create the laws abridging rights could exempt themselves from the charter’s constraints. Prime Minister Brian Mulroney saying in essence that a constitution that failed to protect fundamental rights from the purview of legislative override was of no value, delivered a more impassioned argument in support of this view. The counter argument is simply that prior to 1982 these rights existed by mere statute, vulnerable to legislative majorities and the acquiescence of British parliament. At the very least the particular rights exempt from the scope of section 33 acquired increased protection. So it can be said that the Notwithstanding Clause facilitated the patriation of the constitution and thereby elevated the status of those rights not within s. 33 domain. The true value of this product of constitutional negotiation is to be seen in practice and in potential, not in patriation alone. There has been a dearth of charter cases utilizing s. 33. As a purely political act the Quebec government repealed and then reenacted all laws after having inserted the override section, thus insulating them from charter scrutiny. The Supreme Court upheld this omnibus application of s.33, and more important, interpreted a reference to the section or subsection of the charter instead of an explicit citation of the specific rights affected, as adequate. This “expressly declare” provision was seen as a catalyst for public debate, and the court’s apparent disregard for that consideration was seen as hampering the effectiveness of s.33. More relevant are the other two occasions when the override was utilized. In 1986 the government of Grant Devine, of Saskatchewan, invoked s.33 to shield back to work legislation affecting SGEU . An initial challenge to this action was abandoned by SGEU, therefore this particular case solicited no commentary from the Supreme Court or other sources on the parameters or conditions where override protection of legislation is warranted. What is telling is the muted reaction of the citizenry, media and fellow justice ministers to the invocation of the clause and the resulting denial of right to strike . If the use of the override by Saskatchewan was remarkable for the de facto consent it received from most quarters then equally remarkable was the resounding renouncement of the actions of the Government of Quebec in reaction to its utilization of s.33 . Here was an instance where the Supreme Court dealt explicitly with the override clause. It placed the first restriction on its use when it ruled that it could only be implemented prospectively and not used to invalidate existing legislation. While this ruling seems proper and legally sound, it hardly places sufficient restrictions of use of such an unwieldy tool of constitutional change. The difficulty most constitutional scholars have with respect to s.33 is the deference exhibited by the Supreme Court regarding its usage. Some have suggested s.1 might apply to the override clause allowing it to better reflect democratic ideals . Directly after its inception it was postulated that this might be an avenue for judicial review of override cases. Given the refusal of the Supreme Court to consider the proportionality of override usage to this point, sufficient precedent has been established to preclude such action in the future. Having now established the legal parameters of this issue it is now fair to summarize to current status of the override. It would seem that the argument in favour of s.33 and especially it usage is vulnerable. We have evidenced fundamental rights abrogated and documented absolute deference, perhaps appropriately, from The Supreme Court. The debate now switches to a more historical and philosophical realm. When the Constitution Act of 1982 was passed with the ensconced Charter of Rights and Freedoms Canada was altered from a system of parliamentary supremacy to one of constitutional supremacy. Although the inclusion of s.33 was an attempt to maintain the status quo, in both theory and practice, Canada is forever changed . Historically people have imbued the courts with respect not afforded their legislatures. Certainly their revulsion to the use of s.33 by Premier Bourassa to override freedom of expression rights more galvanized this sentiment. However, in this act lies the genesis of the case in favour of s.33. This singular legislative act so offended the democratic sensibilities of Anglo Canadians that it resonates still with the electorate and influences government policy, to the extent that when Quebec’s sign law was renewed it was passed without using the Notwithstanding clause, falling within appropriate restrictions on expression. Undoubtedly Quebec is very sensitive to its international reputation and eager to be recognized as a legitimate liberal democratic entity, which acts as an artificial restraint on use of the override . The stressor of peer pressure and international regard also factor in discouraging the other Premiers from impulsive use of s.33. Simply stated, the perceived legitimacy of the courts, in terms of rights protection discourages legislatures from disregarding court decisions. A stark example where another artificial constraint was placed on an inappropriate legislative appetite was in Alberta. The citizens of Alberta issued Premier Ralph Klein an unequivocal rebuke after learning of his intention to limit compensation to sterilization victims . This reaction motivated the Alberta government to extensive policy research on when the invocation of the Notwithstanding clause would be appropriate. The most temping occasion was in response to an expected affirmation of gay rights by The Supreme Court. Perhaps surprisingly, given Alberta’s traditionally conservative nature, the respondents never supported by majority the use of s.33 to override the rights of gays, even in the most controversial circumstances. This was undoubtedly compelling enough to inspire legislation prohibiting the use of s.33 unless a majority affirmed its use in a referendum, followed by majority support in the Alberta legislature . Here is an example of the beneficial construct from this charter’s unique dynamic. The Supreme Court “read in ” the extension of rights to gays in the Vried case . This was a purview unavailable to them prior to the adoption of the charter. Contrary to popular sentiment this controversial interpretation of charter rights avoided a legislative proscription, thus further legitimizing these rights. It might further advance the case for s.33 if we establish that contrary to popular sentiment the courts are not the infallible bulwarks of rights protection that prevailing wisdom suggests. The 14th amendment to the American Constitution was ratified in 1865 but suffrage was not extended to black males until 1870 and not to women until 1920. More conspicuously, it was not until Brown v. board of education that state sanctioned racial segregation was abolished. Court decisions are very much the product of political influence and popular sentiment whether immune from the legislative override or not. In the history of the override provision it can be said that of the 3 instances of s.33 usage one was purely political posturing, so as to be inconsequential. Another was reversed upon renewal after 5 years and the 3rd was not sufficiently controversial to inspire the populace to action . The affect of 18 years of constitutional override is not the relegation of rights to common statute standing, but rather, a more thorough appreciation for them whilst retaining the inherent flexibility and legitimacy of legislative override. The true value of s.33 may not be observed now as easily as it might be in it’s final form. The prevailing notion is that through judicial interpretation or legislative act it should be more onerous to affect legislative override, not to the level of constitutional amendment of the rights in question, but perhaps a moderated super majority . The dialogue created by judicial-legislative interplay is truly indispensable to the democratic process, however the possibility exists that the dialogue could be circumvented and replaced with a legislative diatribe. As equally unappealing is the judicial monologue, the disdain for which increasingly dominates legislative analysis in the United States. The override provision effectively eliminates such concerns in Canada. The inevitable democratization of our override provision will in time perfect the dichotomy so vital to legislative-judicial conciliation.
Другие работы по теме:
Candaian Theatre Essay Research Paper Canadian identity
Candaian Theatre? Essay, Research Paper Canadian identity has always been difficult to define. This definition is essential in order to evaluate theatre in Canada. French Canadians appear to have no difficulty in establishing their own identity, both on and off the stage, as they share a distinct tradition.
R V Keegstra Essay Research Paper Mr
R. V. Keegstra Essay, Research Paper Mr. Keegstra was a high school teacher in the small Alberta town of Eckville, where he also acted as mayor for a short duration.
Mcculloch V Maryland Essay Research Paper McCulloch
Mcculloch V. Maryland Essay, Research Paper McCulloch v. Maryland The case of McCulloch v. Maryland was brought to the United States Supreme Court in 1819. The decisions of Chief Justice John Marshall in this case would set precedence for all future cases involving the expansion of federal power and any impediment on federal powers by state governments.
When I Have Fears Essay Research Paper
When I Have Fears is a poem written by John Keats. He uses a style of writing that has no periods in this particular poem. There are three when clauses, which put some separation in the writing. Identifying these clauses and examining them is this papers objective.
Greg Sirico Essay Research Paper Adv American
Greg Sirico Essay, Research Paper Adv American Gov. November 14th ?98 McCulloch v Maryland Can congress incorporate a bank? Can a state tax the national government? These were some of the key issues that brought up in the Supreme Court case of McCullloch v Maryland. James Madison, the judge in this case, rules in favor of the National Government.
The Failure Of The Meech Lake Accord
Essay, Research Paper The Meech Lake Accord was an attempt by Canadian Prime Minister Brian Mulroney to get Quebec to sign the 1982 Constitution. Quebec, led by Premier Robert Bourassa, submitted five demands. The first demand, a formal voice of Quebec in Supreme Court appointments. Second, say on immigration policy toward Quebec.
American Media Dominating Canadian Culture Essay Research
Paper American Media Dominating Canadian Culture The possibility of the American media taking over Canadian culture has always been an intimidating issue for Canadians over the past few decades. It has been known that the American model of life is one that is very different from ours and that the ?americanization? of Canada could prove to be a threat of losing our own values and beliefs.
Want To Be A Canadian Essay Research
Paper Want to be a Canadian? I have been in Vancouver for one and half year, so I have seen many Canadians. Since I was asked to write something based on my experience in
Outline Of The Constitution Of The USA
Essay, Research Paper I. ARTICLE I– CONGRESS A. Section 1. 1. Establishment B. Section 2. 1. House Membership and Qualifications a. selection and composition
Hcokey Night In Canada Essay Research Paper
September 27, 1999 Luke Rossy Hockey Night in Canada Over the past few decades, the Canadian sport of hockey slowly moved on to the United States and Europe. Only six teams remain in Canada and most of them are either just making enough money to survive or they are in dept. Only two or three Canadian teams are doing ok, fiscally that is.
Cdn Provinces
&Federalsystem Essay, Research Paper The Provinces and the Federal System The three areas of federal and provincial relations where decentralization is made evident are as follows:
The Patriotic Canadian Essay Research Paper For
The Patriotic Canadian Essay, Research Paper For over 130 years, Canada still keeps its word. Our Fathers of Canadian Confederation expressed their firm commitment when they signed the British North Amerian Act 139 years ago. Peace, Order and Good Government. For as long as I can remember, Canada has promoted peace any way possible.
Religious Freedom EsatablishmentFree Exercise Cl Essay Research
Paper Freedom of Religion under the First Amendment has been up for interpretation throughout most of the history of the United States. The two controversial parts of Freedom of Religion are the Establishment clause and the Free Exercise clause. The purpose of this paper is to critique the Supreme Court s reasoning behind it s interpretation of these two clauses.
The Atlantic Charter Essay Research Paper THE
The Atlantic Charter Essay, Research Paper THE ATLANTIC CHARTER AUGUST 14.1941 The President of the United States of America and the Prime Minister, Mr. Churchill, representing His Majesty’s Government in the United Kingdom, being met together, deem it right to make known certain common principles in the national policies of their respective countries on which they base their hopes for a better future for the world.
Canada Essay Research Paper This ISP is
Canada Essay, Research Paper This ISP is is about my views on the Canadian Constitution and what I think needs to be changed in it. Some topics I have chose to discus,
Law Paper Essay Research Paper The Canadian
Law Paper Essay, Research Paper The Canadian Charter of Rights and Freedoms is being cited more frequently as a basis for Canadian lawsuits. One such case that has received much attention in the Canadian, as well as International spotlight is that of Ernst Zundel. Mr. Zundel contends that Government parties denied him his freedom of speech as protected under the Charter .
Canadian Charter Of Rights Essay Research Paper
Canadian Charter of Rights Introduction: The Canadian Charter of Rights and Freedoms is one of the most important ingredients of the Canadian Constitution. By having the Charter entrenched in the
Canadian Film Industry Essay Research Paper ConclusionWe
Canadian Film Industry Essay, Research Paper Conclusion: We as Canadians watch movies on a weekly basis. On average, most people rent videos or attend the local movie theatre to attend and view the latest film. However, Canadians are not aware that they have become desensitized to the global Americanization of the U.S. film industry, which has been turned strong by Hollywood.
IDENTITY Is Not A Strong Enough Word
Essay, Research Paper How do others see Canadians, do Canadians have a unique national identity? Although the United States (US) has some influence on most countries, Canadian life revolves around the US, and sometimes, how much we hate Americans. Most countries cannot say that they are made up of two separate nations (English and French), Canada, on the other hand, can say this.
Federalism Essay Research Paper Federalism the balanced
Federalism Essay, Research Paper Federalism, the balanced division of state and federal powers, is an essential principle of the United States Government. On occasion this balance is contested or violated and court cases ensue. These court cases over time have shaped and defined federalism and the powers, rights, and position of state and national governments.
The Chinese Of British Colombia Essay Research
Paper In the 1850 s the early immigrants to Canada suffered also of ethnic prejudice and were considered unfit for full citizenship. Even though residents of BC considered the Chinese unassailable under any circumstances, they tolerated them because the Chinese were a useful form of cheap labor. But in 1885 the Canadian government imposed a head tax to decrease the Chinese immigration to Canada, since the construction of the CPR was over.
Was The Internment Of Japanese Canadainas During
World War 2 Justified Essay, Research Paper By the eve of Pearl Harbor, nearly 23,000 people of Japanese descent lived in Canada, principally in British Columbia. Three quarters of these people were Canadian born citizens. After the bombing of Pearl Harbor by the Japanese Army, the Canadian government put the War Measures Act in effect and interned all of Canada s Nikkei.
The French Language Charter Essay Research Paper
Expository Essay – The French Language Charter In 1977, the French Language Charter (Bill 101) was introduced to the residents of Quebec by the Parti Quebecois . It made French the official language in the province. Bill
Canadian Charter Of Rights And Freedoms Essay
, Research Paper I. Introduction With the adoption of the Canadian Charter of Rights and Freedoms in 1982, Canadian courts have increasingly played a role in Canadian politics. Peter Russell describes the impact of the Charter on Canadian politics as having “judicialized politics and politicized the judiciary.” The Charter has given the courts the power of judicial review, that is, the examination of laws and state conduct in light of their constitutionality.
Charles River Bridge Essay Research Paper The
Charles River Bridge Essay, Research Paper The Proprietors of the Charles River Bridge Company erected the Charles River Bridge in 1785. It was used to link Charleston to Boston. A toll charge was placed on the bridge for forty years under the corporation charter issued by the state of Massachusetts. The bridge opened on June 17, 1786.
Canada Lacks A Real National Identity Essay
, Research Paper Canada Lacks A Real National Identity I believe that Canada lacks a real national identity. Canadians tend to identify with community and region rather than the nation. Because Canada has
Canadian Senate Essay Research Paper The Canadian
Canadian Senate Essay, Research Paper The Canadian SenateToday the Canadian Senate does not do all that much for the Canadian government. It no longer does the job that it was created to do. It barely stops any bills that go through. They re paid a lot of money to just sit and do nothing. The Canadian Government could work fine without the Senate.
The Canadian Senate Essay Research Paper The
The Canadian Senate Essay, Research Paper The Canadian Senate By Andrew Donogh Today the Canadian Senate does not do all that much for the Canadian government. It no longer does the job that it was created to do. It barely
Canadian Health Care VS US Health Care
Essay, Research Paper One of the major differences between the U.S. and Canadian health care system is the payment system. In the United States, physicians are paid more for doing more, and the return on their time is higher if they perform a procedure than if they use their cognitive skills. Because of the fact that procedures often require hospital care, this approach translates into higher expenditures for hospital care.
Combarison Between Us Bill Of Rights And
Charter Of Rights And Freedoms Essay, Research Paper BACKGROUND OF THE BILL OF RIGHTS The United States Bill of Rights came into being as a result of a promise made by the Fathers of Confederation to the states during the struggle for ratification of the Constitution in 1787-88. A great number of the states made as a condition for their ratification, the addition of amendments, which would guarantee citizens protection of their rights against the central government.
Contract Essay Research Paper Exclusion and Exemption
Contract Essay, Research Paper Exclusion and Exemption Clauses. 166-170, 278, 281, 288, 355-356 (i) The position at Common Law. An exclusion clauses is a term of the contract which limits or excludes a liability from one party which would otherwise be subjected to. The function of an exclusion clause is to limit or exclude liability for breach of an express or implied term or even negligence in a contract.