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Historical essays about the canadian charter of rights and freedoms
Canadian Charter of Rights
Historical essays about the canadian charter of rights and freedoms
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Entrenched clauses are in some cases justified as protection of the rights of a minority, other times they aim to prevent the creation of a dictatorship. But entrenched clauses are often challenged by some as being undemocratic. I believe that yes, the presence of sections 1& 33 in the Canadian Charter of Rights & Freedoms are sufficient to overcome the following objections against an Entrenched Charter.
People would argue that having an Entrenched Charter promotes the “dead hand of the past”. In other words people believe that having an Entrenched Charter that was written such a long time ago doesn’t properly represent today’s society and its morals. Those individuals believe that we are letting old rules that do not necessarily lead
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to the best resolution run the way we live. Adam M. Samaha from the Law School of the University of Chicago, argues in his public law and legal theory paper titled Dead Hand Argument and Constitutional Interpretation that “American revolutionaries once spoke as if they could ‘begin the world over again’ objecting to the perpetuation of bad practices or warning against attempts to lock in one path for the future.” (Samaha 9) Thus developing the idea that generations of people are constantly changing and so should the charter; then we can avoid outdated practices that don’t apply anymore (the dead hand of the past) from effecting the future. Adam M. Samaha states that American revolutionaries “indicated a liberal democratic premise that living human beings are the proper subject of moral concern.”(Samaha 9) Therefore, a charter of Rights written in 1982 could not possibly be completely relevant in today’s society, and the charter should be altered to represent todays living society. But is this enough to say that the entrenchment of a charter violates the basic principles of democracy? Too elaborate Society in 1982 is very much different then how it is today, we are now a much more multi-cultural society due to reasons like our immigration policy being much more liberal than it was in 1982. Though immigration, we are accepting more divers cultures, ideas and approaches that are completely valid and not accounted for by our charter. Technology and communication has also changed in many ways since 1982, for example it is now easier to express your opinion and get your opinion heard though internet and other related media which has lead to harmful conduct such as cyber bullying. Thus leading to the question; should their be limitations on our freedom of expression? In other words, should the section from Fundamental Freedoms saying that everyone has the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” (section 2(b)) be changed due to these changes in our society? Should it not be declared undemocratic to keep such clauses with all the harm that such freedom is causing our society? Therefore, people believe our society is constantly developing and expanding so we should create a charter that represents our growing societies values which would lead to a safer well represented community. The second reason as to why people believe that entrenching a charter of rights is a violation of the basic principles of democracy is because entrenching a charter is so difficult to do.
To entrench a charter, the amendment must be approved by the house of commons, the senate and legislatures from at least 7 provinces, representing at least 50% of Canada’s population. Facing such hurdles, advocates of legal change may seek substitute methods. Also those against having an entrenched charter believe that there has always been alternative methods for constitutional change for example, putting an expiring constitution to a majority popular vote or constitutional conventions whenever two or three branches of government by two-thirds votes support textual alterations. Democracy is defined, as the “government by the people; a form of government in which the supreme power is vested in the people and excised directly by them or their elected agents under a free electoral system.” Having a set list of rules, rights and freedoms written in 1982 that are extremely difficult to change doesn’t sound very democratic. To elaborate, minorities have a problem with the a clause in the charter or have something they wish to add it will be very hard for them to make a change. For example, Aboriginal people who’s views, ways of punishment, decision making and the way they deal with criminals is unaccounted for by our charter and because they are a minority it is harder for them to alter the constitution. Therefore the rules, rights and freedoms written in a past society will continue to stand as the guide line for a society with ever-changing views and ways of
life. I believe that sections 1 & 33 are sufficient to overcome the objections stated prior in this essay. I believe this for the following reasons; section 33 or otherwise known as the “notwithstanding clause” or the “override power”; allows parliament or provincial legislatures to override certain parts of the charter. Law makers can enact the clause if they believe that democracy will be best represented by overriding a law. In other words, the notwithstanding clause gives society the power to override a law if seen fit to do so. I believe that the clause promotes democracy because it gives the people say in important issues also it prevents the unelected judiciary from having too much power over elected legislatures. I believe that section 33 solves the problem of the “dead hand from the past” because it allows for society to potentially change or add to the charter if there is sufficient reason to do so. I believe that the idea of having the ability to entrench a charter itself promotes democracy by giving people the opportunity to make a change. Section 1 also known as the “Reasonable limits clause” allows the government to limit an individuals charter rights. Section one has been used in the past to protect society from unreasonable interference of government, it also prevents a variety of objectionable conduct for example, hate speech. The entrenched charter is a rational pre-commitment to rules, rights and freedoms that is capable of growth and expansion if so needed. Although in situations it may be hard to adjust the charter, and the rules, rights and freedoms were written a in the past but they continue to be the important rules and freedoms that help to maintain a strong functioning society to this day. I believe, that the charter allows flexible interpretation and adaptation through entrenchment if there is a fundamental shift in circumstances or in societies moral beliefs therefore all sociities have the opportunity to be represented in the charter is there is an Issue. Therefore I believe that sections 1 & 33 do overcome the objections.
The Meech Lake accord was a set of constitutional amendments that were designed to persuade Quebec Province to accept the Canadian Constitution Act of 1982 (Brooks 152). This accord derives its name from the Meech Lake, where these negotiations were held by Mulroney Brian, the Canadian Prime Minister, and the ten premiers of the ten Canadian Provinces (Brooks 211). By the time the Canadian constitution was being implemented, Quebec was the only province that had not consented to it. Somehow, the partition of the constitution in 1982 was carried out without Quebec’s agreement, but it was still bound by the same law. Attempts were made to persuade this province to sign the constitution, which it agreed to do but only after its five demands are fulfilled by the Canadian government. Unfortunately, these demands were not met and this accord failed in 1990, when two provincial premiers failed to approve it. This paper answers the question whether Quebec asked for too much during the Meech Lake Accord negotiations.
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. COMPARISON OF BILL OF RIGHTS AND THE CANADIAN CHARTER... ... middle of paper ... ...
There could be arguments supporting it and arguments going against it. As a result, the citizens of the UK saw a codified constitution as a necessity at that moment. However, there are many advantages of an uncodified constitution. The biggest advantage is the idea of flexibility. As societies are changing, and societal norms take new forms, it is very important for the constitution of countries to adapt to that quickly, as a country’s constitution should be in the best interest for its citizens.
A Constitution is a set of rules put in place to govern a country, by which the parliament, executive and judiciary must abide by in law making and administering justice. In many countries, these laws are easily changed, while in Australia, a referendum process must take place to alter the wording of the Constitution (Commonwealth of Australia, date unknown, South Australian Schools Constitutional Convention Committee 2001). Since the introduction of the Australian Constitution in January 1901, there have been sufficient proposals to alter and insert sections within the body to reflect the societal values of the day, ensuring the Constitution remains relevant to the Australian people. Although Constitutional reform can be made on a arrangement of matters, the latest protests on Indigenous recognition and racial references within the body of the Constitution has called into question the validity of racial inclusion, and whether amendments should be made to allow for recognition. This essay will focus on the necessity of these amendments and evaluate the likelihood of change through the process of referenda.
The Charter of Rights and Freedoms is the strong foundation for the diverse country of Canada. They uphold various beliefs and values Canadians may have. Under the constitution in 1982, the CRF (Charter of Rights and Freedoms) was entrenched by then Prime Minister Trudeau. The CRF has 4 rights; Equality, legal, democratic and mobility, there is also 4 freedoms; of Conscience and Religion, of thought, belief, expression and media, of peaceful assembly, and Association. If people feel that their right and/or freedom has been violated, they can go to court by using a “Charter Challenge. ” A charter challenge is when something inequitable or unfair has been done, the citizen can pursue the court case stating that something violated their rights and/or freedoms. All the rights and freedoms help
MacDonnell, Vanessa A. "The Protective Function And Section 7 Of The Canadian Charter Of Rights And Freedoms." Review Of Constitutional Studies 17.1 (2012): 53-85. Academic Search Complete. Web. 16 Nov. 2013.
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...
...ratic process but it at least protects the rights of Canadians and prevents all out domination the majority.
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...
The Constitution of the United States of America (US) is the bedrock of the political and judicial system of a country which at the time founded represented a new direction of governance not practiced for nearly two millenniums. The US became the first democratic republic in modern history with a Constitution that came into force in 1789, deriving more ideals from the Romans or the Greek Mini-States that from any political system in place around the world at the time. It is undeniable, even by the strictest constructionist or originalists that the U.S. Constitution borrowed concepts not only from famous ancient philosophers like Aristotle or Cicero but also from modern political thinkers like Locke, Montesquieu
This essay did mention the role of a codified constitution earlier in the definition section, and what was mentioned was, that a codified constitution does not only create constraints and limitations for the government of the day, but it also is a framework and guideline for how politics should be conducted. This guideline serves as a mechanism of stability and clarity for the work of a government. As Keith Whittington puts it “Constitutionalism is the constraining of government in order to better effectuate the fundamental principles of the political regime.” (Whittington, Keith p. 282) Thus it allows the political bodies to focus on important issues. An example where the
The United States have always insisted that their codified constitution’s only purpose is to serve every US citizen and only them, with no ulterior motives. Can this always be considered the case when said constitution is so difficult to amend and struggles to keep up with the vigorous changes the world endures over the years? Critics often argue that the United Kingdom should adopt the same type of constitution, but if their aim to put their citizens first is reached and done so without the need of a defined document, does it really need to be adopted? Essentially, a constitution is a set of rules which aims to define a country’s system of government, and their purpose is to set out broad principles concerning who makes the law and to allocate
While an uncodified constitution has the advantages of dynamic, adaptability and flexibility to meet the ever-changing needs of the society , it poses much difficulty in pinpointing the ultimate constitutional principle that should provide legitimacy in the British constitution. This results in a battle between two broad schools of thought––political constitutionalism and legal constitutionalism.
It is impossible to interpret a text with no notion of these social contentions, in compliance with current demands. David A Strauss, Professor at Chicago University and author of “The Living Constitution” asked the proper question, “why should we allow people who lived long ago, in a different world, to decide fundamental questions about our government and society today?” There will always be a need for the government to adapt to the evolving society. The framers of the Constitution intentionally created the text to be profoundly vague and ambiguous to allow for flexibility and loose interpretation (Hammer). Without the ability to reanalyze and break down the Constitution with the adjustment of time, the rights and demands of the citizens could not be successfully
There is a long standing problem in political theory that can be best summed by the Latin phrase “Quis custodiet ipsos custodies?” which roughly translates to “Who will guard the guards themselves?” (Juvenal 347-8). This refers to the idea of any government-like body needing a certain set of rules that dictate how the body can function, thus keeping its members’ supremacy in control. Hence, the problem of elite regulation, in its bare form, is that while a subset of authoritative figures is essential for society to function, it is their very authority that can harm the society that they govern, and thus they need to be delimited in ways that have positive, rather than negative, effects on said society.