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essays canadas charter of rights and freedoms
essays canadas charter of rights and freedoms
essays canadas charter of rights and freedoms
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The Canadian Charter of Rights and Freedoms was enacted under the Pierre Trudeau government on April 17, 1982. According to Phillip Bryden, “With the entrenchment of the Charter into the Canadian Constitution, Canadians were not only given an explicit definition of their rights, but the courts were empowered to rule on the constitutionality of government legislation” (101). Prior to 1982, Canada’s central constitutional document was the British North America Act of 1867. According to Kallen, “The BNA Act (the Constitution Act, 1867) makes no explicit reference to human rights” (240). The adoption of the Charter of Rights and Freedoms significantly transformed the operation of Canada’s political system. Presently, Canadians define their needs and complaints in human rights terms. Bryden states, “More and more, interest groups and minorities are turning to the courts, rather than the usual political processes, to make their grievances heard” (101). Since it’s inception in 1982 the Charter has become a very debatable issue. A strong support for the Charter remains, but there also has been much criticism toward the Charter. Academic critics of the Charter such as Robert Martin believe that the Charter is doing more harm than good, and is essentially antidemocratic and UN-Canadian. I believe that Parliament’s involvement in implementing the Charter is antidemocratic, although, the Charter itself represents a democratic document. Parliament’s involvement in implementing the Charter is antidemocratic because the power of the executive is enhanced at the expense of Parliament, and the power of the judiciary is enhanced at the expense of elected officials, although, the notwithstanding clause continues to provide Parliament with a check on...
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...of the executive is enhanced at the expense of Parliament, and the power of the judiciary is enhanced at the expense of elected officials, although, the notwithstanding clause continues to provide Parliament with a check on the judiciary.
References
Bryden-Martin. Is the Canadian Charter of Rights and Freedoms Antidemocratic?
Charter of Rights and Freedoms
Kallen, Evelyn. (2010) Ethnicity and Human Rights in Canada. (3rd ed.) Toronto: Oxford University Press. pp. 240-270
Kelly, James. (2007). Parliament and the Charter of Rights: and unfinished constitutional revolution. Policy Options, 28 (02), 103-107.
Makarenko, Jay. (2007). Parliamentary Government in Canada: Basic Organization and Practices. Government & Institutions.
Russell, Peter. (2007). The notwithstanding clause: the Charter’s homage to parliamentary democracy. Policy Options, 28 (02), 65-68.
One of the few purposes of the Section 11(b) of the Canadian Charter of Rights and Freedoms is to ensure that the right for a fair trial for every person criminally tried on Canadian soil and the right for them to be tried within a reasonable time. This ensures that when the trial is commenced in court while the evidence is fresh and available during the trial. However, trials in the Canadian justice system can be delayed due to many factors in which the criticism could be on either the Crown or the accused. This essay will examine the Supreme Court of Canada case R. v. Morin. In this case, the accused was charged for impaired driving and the trial date set 399 days after the judge scheduled the trial. In total this was 444-days after the accused was charged with the impaired driving offence. The final verdict of this case set a precedent in the justice system due to the decision by the Ontario Court of appeal that decided that the trial delay was reasonable due to lack of prejudice to the accused during the delay.
Apart from the other laws in Canada’s constitution, the Canadian Charter of Rights and Freedoms is an important law that affects every Canadian’s rights and freedoms. It was created in 1981 by former Prime Minister Pierre Trudeau to provide legal protection for the most important rights and freedoms. These rights include fundamental freedoms, democratic rights, mobility rights, and legal rights. Most but not all articles included in the Universal Declaration of Human Rights are protected in the constitution. However, if a Canadian feels that their rights are violated, they can challenge laws and unfair actions using the justice system. In my opinion, I believe the Canadian Charter of Human Rights somewhat protects Canadians’ rights and freedoms to some extent depending on the situation.
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 exem...
A more sudden, but perhaps equally profound event is the adoption in 1982 of the Canadian Charter of Rights and Freedoms. Whereas before the adoption of the Charter Canadian legislatures were supreme, having power without limit within their jurisdictions, they now have debatable supremacy within altered jurisdictions. Moreover, although no powers or rights have been explicitly ‘reserved’ to the people, supporters of the charter nevertheless appear to give Canadians hope that the possibility may exist.
This great country known as Canada, is governed smoothly because of the agreements and rules that have been in place since the beginning of confederation. The Canadian Constitution is one example of these rules. The Canadian Constitution is not just one single documentation, it is a collaboration of documents that make up one enormous document (Dyck 261). The six basic principles of the constitution are: responsible government, federalism, judicial review, the rule of law, constitutional monarchy and democracy; which all helped to shape the Constitution and therefore Canada (Dyck 266).
Canada is perceived by other nations as a peace-loving and good-natured nation that values the rights of the individual above all else. This commonly held belief is a perception that has only come around as of late, and upon digging through Canadian history it quickly becomes obvious that this is not the truth. Canadian history is polluted with numerous events upon which the idea that Canada is a role model for Human Rights shows to be false. An extreme example of this disregard for Human Rights takes place at the beginning of the twentieth-century, which is the excessive prejudice and preconceived notions that were held as truths against immigrants attempting to enter Canada. Another prime example of these prejudices and improper Human Rights is the Internment of those of Japanese descent or origin during the Second World War. Also the White Paper that was published by the government continues the theme of Human Rights being violated to the utmost extreme. All these events, as well as many others in history, give foundation to the idea that “Canada as a champion for Human Rights is a myth”.
Democracy is more than merely a system of government. It is a culture – one that promises equal rights and opportunity to all members of society. Democracy can also be viewed as balancing the self-interests of one with the common good of the entire nation. In order to ensure our democratic rights are maintained and this lofty balance remains in tact, measures have been taken to protect the system we pride ourselves upon. There are two sections of the Canadian Charter of Rights and Freedoms that were implemented to do just this. Firstly, Section 1, also known as the “reasonable limits clause,” ensures that a citizen cannot legally infringe on another’s democratic rights as given by the Charter. Additionally, Section 33, commonly referred to as the “notwithstanding clause,” gives the government the power to protect our democracy in case a law were to pass that does not violate our Charter rights, but would be undesirable. Professor Kent Roach has written extensively about these sections in his defence of judicial review, and concluded that these sections are conducive to dialogue between the judiciary and the legislature. Furthermore, he established that they encourage democracy. I believe that Professor Roach is correct on both accounts, and in this essay I will outline how sections 1 and 33 do in fact make the Canadian Charter more democratic. After giving a brief summary of judicial review according to Roach, I will delve into the reasonable limits clause and how it is necessary that we place limitations on Charter rights. Following this, I will explain the view Professor Roach and I share on the notwithstanding clause and how it is a vital component of the Charter. To conclude this essay, I will discuss the price at which democr...
Three decades ago, honorable Prime Minister Pierre Trudeau was establishing the renowned Charter of Rights and Freedoms. Since the three decades of being established, the Charter of Rights and Freedoms has protected the individual rights and freedoms of thousands of Canadians. The Charter of Rights and Freedoms has become a part of the national identity and has become a big patriotic symbol for the country. The Charter of Rights and Freedoms is the document the truly separates Canada from all the other powerful nations and is really something that Canadian take a pride in. The Canadian Charter of Rights and Freedoms brings up many questions, but the biggest and most common question is How effectively does Canada’s Charter of Rights and Freedoms protect your individual rights? . To exactly know how effectively it protects your rights you can look at situations where it has protected and has not protected the rights of Canadians. The Charter of Rights and Freedom protects legal rights of Canadian whether they are a teenager or an adult, protects equality rights of Canadian and provides government services to all Canadians no matter what, ensures all laws are passed according to the Charter of Rights and Freedoms and provides equality rights and fundamental freedoms to Canadians for practicing their religion and other rights without interference.
The Canadian Charter of Rights and Freedom is a bill of rights included in the Constitution of Canada. It forms the first part of the Constitution Act,1982. The document includes pictures of the Canadian coast of arms, the flag of Canada, the Parliament Building, and the signature of the former Prime Minister Pierre Trudeau. The purpose of the Charter is to guarantees certain political rights to Canadian citizens. These rights include:
The federal and provincial government’s bona fide ability to implement bounds on the rights and freedoms enjoyed by the Citizens of this great nation is an absolute necessity. The confines permitted by the ‘reasonable limits clause,’ ‘notwithstanding clause’ and the need for increased powers in extreme circumstances demonstrate society’s inherent need for confines to prevent disorder and mayhem. If the governments were unable to invoke restraints, chaos and anarchy would prevail. However, the need to ensure that the limitations do not unreasonably infringe of rights and freedoms of Canadians is equally important. If governments began to continuously and unreasonably infringe the rights and freedoms, individual Canadians would become a communist state such as North Korea.
In the summer of 1787, delegates from the 13 states convened in Philadelphia and drafted a remarkable blueprint for self-government, the Constitution of the United States. The first draft set up a system of checks and balances that included a strong executive branch, a representative legislature and a federal judiciary. The Constitution was remarkable, but deeply flawed. For one thing, it did not include a specific declaration, or bill, of individual rights. It specified what the government could do but did not say what it could not do. For another, it did not apply to everyone. The "consent of the governed" meant propertied white men only. The Bill of Rights did not come from a desire to protect the liberties won in the American Revolution, but rather from a fear of the powers of the new federal government.
In Canada’s democratic government, voting is a powerful way for citizens to communicate their values. The leader who is chosen reflects the power of the Canadians’ values. Thus, to the government, every vote matters, assuring Canadians that their opinions matter. Today, Canada recognizes voting as a fundamental right for all of their citizens. The Canadian Charter of Rights effectively protects this right of all Canadians, even minorities, through section 3. “Every citizen of Canada has the right to vote in an election of members of the House of Commons or a large legislative assembly and to be qualified for membership therein”. This ensures equality for vote to all Canadians. Equality is to allow all Canadians equal opportunity, even if they are of different race, religion, gender and etcetera. However, in the past, this fundamental right has not always been accessible to all. In fact, voting was considered a privilege where citizens had to qualify to have the ability to vote. The rules were so strict that only eleven percent of the past population of Canada could have voted, compared to today’s seventy-eight percent. Many of these rules of who could vote and who could not were very unjust. This was especially seen in minority groups who did not have the franchise, the right to vote.. In this essay, it will be seen that the inequalities to vote made racial exclusions, religious exclusions and gender exclusions more pronounced. It will be seen that the government treated certain races with intentional discrimination creating a lack of an opportunity to vote. As well, the government showed prejudice to certain religious groups, denying these groups their ability to vote. And, finally, it will be seen that views against women aided ...
Many people and nations around the world are deprived of human rights. The government in the countries or nations usually can not help the people being deprived. Either because the government is too poor to, it is not one of the things the government is looking into, or the government does not know or care. Because of this certain people, or even whole populations are denied human rights and their living conditions and way of life are usually not on the positive side of things. There are many wealthier countries trying to help but sometimes that is not enough. To what extent should Canada have a role in working to increase human rights protection in other nations?
We live in the 21st century, where most Americans mind their own business but take for granted our God given rights. Not only God given rights but also those established by our founding forefathers. This paper will illustrate and depict the importance of the original problems faced when adopting the Constitution and the Bill of Rights. It will discuss the importance of the first amendment, the due process of the 4th, 5th, 6th, and the 8th amendments. Last but not least the importance of what is known as the “second Bill of Rights” (14th amendment).
This essay has argued that there are many limitations that the Prime Minister is subjected too. The three most important are federalism in Canadian society, the role of the Governor General, and the charter of rights and freedoms. I used two different views of federalism and illustrated how both of them put boundaries on the Prime Minister’s power. Next I explain the powers of the governor general, and explained the ability to dissolve parliament in greater detail. Last I analyzed how the charter of rights of freedoms has limited the Prime Minister’s power with respect to policy-making, interests groups and the courts. The Prime Minister does not have absolute power in Canadian society, there are many infringements on the power that they have to respect.