Essay On Canada's Constitutional Arrangement

Outline Canada’s constitutional arrangement. Give a robust and well-supported explanation that outlines its historical origins, principles, and key legislation. (300 words) Canada is a constitutional monarchy where the parliament can make amendments to the constitution. What this means is that the monarch of the U.K. is the formal head of state. In this system, Canada has a constitution but also has some shared powers. In Canada, there are duties where the provinces or the national legislation has autonomy. In 1867, Canada passed the Constitution Act. The Constitution Act established three provinces and defined the structure of the Canadian government. In 1931, the Statue of Westminster

determined that changes to the Constitution Act could only be made through Westminster. There were several additional key pieces of legislation that were creates to provide Canadians with individual rights. These pieces of legislation were the Canadian Bill of Rights (1960), and The Canada Act (1982). The Canadian Bill of Rights occurred during Prime Minster John Diefenbaker’s term. This legislation gave explicit rights to the Canadian individuals. In the Canada Act the Westminster decision making regarding the Statue of Westminster was ended. The constitution is the supreme law of Canada. The charter is applicable to the parliament and government. This idea that the government is held accountable comes from the English Civil War and the Magna Carta. In England there had been a history of abuses of power which Canada wanted to avoid. The Charter increases judge’s power. This was meant to protect against a tyranny of the majority and preserves individual right.
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What is the liberal idea of the rule of law? Give a robust and well-supported explanation that outlines its historical origins, principles, Canadian context, and critiques. (300 words) Liberalism is the protection of individual rights. Under the liberal idea of the rule law crimes must be proven in courts, no one is above the law and the judgements makes up the constitution One of the main court cases that defined the limits to protection of individual rights were R. v. Oakes in 1986. Under this case the limits to rights were permissible if the violation was sufficiently important, and there are measure to preserve rationality. Furthermore, a rights violation must impair the individual freedom as little as possible, and there must a proportional ratio of effects. The liberal rule of law has critics. These critics point to judge appointment and the democratic rights as potential problems with the liberal rule of law. Preventing the tyranny of the majority becomes important. Furthermore, there must be a line between individual rights and governmental policy. With that being said the rule of law acknowledges that the limit to personal right is when those rights infringe on another’s right. In the liberal rule of law there is one law that governs all. This means that minorities, immigrants and refugees are protected under the law. Additionally, there is not one person who is

above the law. With that being said, a balance between the principles of the liberal rule of law and the democratic principle must be obtained.
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“A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle... It would be a grave mistake to equate legitimacy with the ‘sovereign will’ of majority rule alone, to the exclusion of other constitutional values” (“Analysis of the Constitutional Principles”. In: Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 247-263). Drawing on this quote from Reference re Secession of Quebec, write a short essay arguing whether or not there is adequate interaction between the rule of law and democracy in the decision in Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37. Using the Harkat case and any other content from our course as your source material, give a robust and well-supported argument for your answer. In your response be sure to demonstrate your ability to construct a thesis statement and carry out a sustained argument, as well as use appropriate and correct facts from Harkat with proper referencing. (900 words) The case of Canada (Citizenship and Immigration v. Harkat is a case where the liberal idea of the rule of law is put to the test. In 2002, Mohammed Harkat was arrested in Canada for the purposes of preserving National Security. Since his arrest, Harkat has had to defend his ability to stay in Canada and has claimed innocence. The liberal rule of

law is one where the individual rights are preserved. Fundamental ideas about the liberal rule of law include that those accused of a crime are allowed to have a court hearing. However, in this case, it is alleged that Harkat’s arrest, detention, and eventual deportation are to preserve public safety. As such the question becomes what power does the Canadian government have to override the liberal rule of law and what powers do they have in these types of cases. The Harkat case is one where it is important that Canada maintains its liberal rule of law. The next decision regarding Harkat’s deportation could lead to an erosion of the Canadian protection of individual rights the has the potential to be a slippery slope to further erosions.
Harkat is originally from Algeria. He immigrated to Canada with dreams for a peaceful future. However, after the U.S. terrorist attacks on September 11, 2001, Harkat was arrested on a security certificate. According to Black (2016), “He has never been charged with a crime but has been held under the security certificate regime, which allows Parliament to deport foreign-born terrorism suspects. The Supreme Court ruled in 2014 that the security certificate policy was constitutional” (n.p.). In other words, despite the original decree that Canadians have the right to have a court hearing to have crimes proven this right was changed in response to the terrorist attacks. This change allowed for Harkat to be held indefinitely and even deported without a court hearing and without their being concrete evidence of a crime that had been committed. Furthermore, Harkat was never found guilty of an act of terrorism. According to the research, “Jackman agrees. “That’s the real root of the Harkat case: Islamophobia.” She maintains the Canadian government, after the U.S. terrorist attacks of Sept. 11, 2001, used security certificates to make a point, either to a specific community or Canadians generally, that the country is taking care of terrorists” (Black, 2016). In other words, the use security certificates were meant to send a message about Canada’s stance on terrorism. This harsh stance allowed for the Canadian government to intervene to protect public safety at the expense of individual rights. However, through using these certificate the rights of the individual are eroded, and it is unclear how much safety is protected as one does not know for sure if the person being held has committed a crime or not. A key element, in this case, is Harkat’s past in Algeria. As an immigrant from a region with ties to terrorism Harkat is exposed to bias and discrimination. According to the article, Should Trees Have Standing Toward Legal Rights for Natural Objects, “The fact is that each time there is a movement to confer rights onto some new entity the proposal is bound to sound odd or frightening” (Stone, p. 8). In this case, the fear that Harkat could be a terrorist is an integral aspect of the case. Furthermore, according to the Immigration and Refugee Protection Act the certificate only apply to non-citizens of Canada. The problem with the certificates is that there is a lack of evidence that supports the charge. In Canada, the Charter is supposed to protect individual rights. In this case, it seems as if the change in the issuing of security certificates has created a situation where one can be imprisoned and have consequences without being found guilty of a crime in a court of law. The Canadian Charter is supposed to protect individual rights. However, there are gaps and problems in the Canadian law. According to the research, “There are gaps in the law, particularly where statutory courts and administrative tribunals are concerned; these bodies may have the duty to abide by and apply the Constitution, but many do not have authority to grant a remedy that will do justice to the claimant. The courts cannot provide a complete solution since the assignment of jurisdiction is entirely a matter for the legislatures (McAllister, 2004, p. 5). In other words, the courts are limited in their powers and cannot always come to a just solution due to these gaps and limitations. This restriction means that even in cases like Harkat there can be a violation of the individual's rights due to the gap and due to changes to the constitution that tie the hands of the legislatures.
Harkat currently faces deportation due to his suspected ties to terrorism. These ties have never been proven in a court of law and there is a lack of evidence he has committed a crime. To deport Harkat without known ties and a court finding him guilty of such violates the liberal rule of law and the preservation of individual rights. As such, it is recommended that the Canadian government not deport Harkat to preserve the intentions of the constitutional protections.