Before the Charter, many people may argue that Canada was a free and democratic country. Canadians had the freedom of expression, equality and the principles of fundamental justice. What changed with the creation of the Charter was that rights and freedoms were given constitutional status, and judges were given the power to strike down laws that infringed on them. In 1982, most Canadians agreed that the introduction of the Charter was going to monumental. But on the contrary, over 30 years later, numerous laws have been struck down by interpretation of the charter and remedial techniques that have been developed by courts.
This draft is commonly referred to as the Victorian Charter and guaranteed and language rights to all ten provinces however, Saskatchewan and Quebec were not satisfied and asked for the document to be amended. Despite their obligations, Trudeau was intent constitutionally entrenching the charter of rights. With the Quebec referendum of 1980, Trudeau was able to introduce a resolution in parliament on October of 1980 which included a proposal for the charter of right which furthered the controversy. Government officials were concerned that this draft transferred undue power from elected politicians and into the hands of unelected and unaccountable judges as well as offering a limited protection of individual rights. Which eventually led to the incorporation of the notwithstanding clause within the charter, which ultimately allows the federal government or a provincial legislature to enact legislation to override several sections of the Charter that deal with fundamental freedoms, legal rights and equality rights.
The Canadian political system is based entirely on democracy. As a democracy it has the duty “to protect itself against the forces of dissolution as soon as they [appear]” (Pierre Trudeau 133). Few people would disagree with the government’s decision to invoke the act. Surely because of the apprehension, almost everybody in the nation was feeling during the violent insurrection in Quebec. Resulting from “seven years of terrorist assaults in Montreal and Ottawa” (130) in which “resulted in six deaths” (Eric Kierans 181).
The 1960’s and 70’s were a time of political turmoil and unrest in Canadian history. The October of 1970 in particular, is a period remembered for its violence and hate. The kidnapping of two Canadian politicians by the Front de Libération du Québec (FLQ), a terrorist group, changed Canadian society forever. The FLQ and the October Crisis ignited separatist feelings in French Canadians, changed the way the government handled national emergencies and altered Canadians’ opinions on key issues. The October Crisis is a truly significant moment in Canadian history for many reasons.
Ideology and the role of the judiciary are frequently in tension. In Six Great Inventions in the Art of the Government, Samuel Finer praises Judicial Review as one of the practices that established and shaped the modern state. He sees the Supreme Court’s ability to interpret a case to protect American citizens as foundation of an effective government. Nonetheless, Judicial Review is more applicable as a doctrine than as an unchanging invention. Theodore Lowi’s piece Bend Sinister: How the Constitution Saved the Republic and Lost Itself would inherently disagree with Finer.
Woodrow Wilson once referred to the Supreme Court as “a constant constitutional convention in continuous session”, due to the role they have played in interpreting the constitution as it is written. Due to the ambiguity found in much of the phrasing in the constitution, judicial interpretation of the constitution can be considered both necessary and inevitable (Comer, Gruhl et al., 2001). The courts have the power to declare unconstitutional the actions of the other branches and units of the government in what is known as judicial review (Tannahil, 2002). The first case in which the court elaborated on the principle of judicial review was that of Marbury v. Madison in 1803 and put forward that in the case of conflict between the constitution and a statute, it is “the duty of the judicial department to say what the law is” (Smith, 1975). Following this, the case of Fletcher v Peck (1810) is of equal importance as it was the first case in which a state law was declared by the court to be unconstitutional.
Prior to the reading of both essays of Supreme Court Justice William Brennan and Attorney General Edwin Meese my personal opinion was to interpret the constitution as best fitting for the current situation, whatever that may be. Post reading that opinion that I held changed. After reading these essays I realized that it is more important to stick as closely to what the framers of the constitution meant as possible. As stated in Meese’s essay, “Any true approach to constitutional interpretation must respect the document in all its parts and be faithful to the Constitution in its entirety.
In all areas of law reasonableness tends to play a fundamental role including reasonably foreseeability, the reasonable man, beyond reasonable doubt and reasonable force to name a few. The concept of reasonableness in public decision making is no different and has developed, expanded and retracted in various jurisdictions over the past century. In public decision making, reasonableness particularly relates to judicial review, and the actions, events or otherwise which lead a public body to arrive at a particular decision rather the decision itself. It is of great importance that reasonableness is applied to public bodies in order to control the exercise of power and to prevent arbitrary and unfair decisions. In this essay, we will examine
All things considered, Mark Sutherland has brought together a provocative corps of respected scholars and legal thinkers who collectively offer an incisive critique of a judiciary gone awry while they offer constructive solutions for reform. They make it abundantly clear that we the American people do not have to be slaves to the edicts of these black-robed deities. Their adroit assessment of the federal judiciary is intelligent, rooted in a principled esteem for the rule of law and constitutional popular rule, and their solutions are constitutional defensible, practical and tenable. One thing is resoundingly clear, we must stand up to these demigods in block robes that contravene the design of our federal republic and offer outlandish decisions at odds with the will of the vast majority of the people. It is paramount that the American people awaken and voice their discontent to their elected representatives in Congress if we are to abate judicial tyranny.
Contents 1. Introduction 2 2. Parliamentary sovereignty 2 3. The Electoral system 3 4. Parliament in the past 3 5.
As a head of our government, the leader of our nation and the individual that Canadians look to for change and prosperity, the Prime Minister (next to the Governor General of Canada) holds the greatest amount of governing power. Democratic parliamentary systems like the one in Canada, compromise with their general population in order to give the people a voice within government. It is important to understand how the parliamentary system works in order to understand what administrative powers the Prime Minister executes and whether they are effective or not. The presence of a responsible government ensures Canadians that the governing body is an elected assembly instead of having a monarch in power. The Prime Minister, citizens of Canada, as
Edmund Burke once said, "A state without the means of some change is without the means of its conservation." (Burke 36) A country 's constitution needs mechanisms in place to make amendments because as progress is made the landscape of a country is altered. Times change and people change. Constitutions are stories nations tell about themselves (Adams 3), how they wish to protect their citizens and how it must "provide more than a legal blueprint for governance" (Adams 2) In Eric Adams article, Canadian Constitutional Identities, he explains that a Constitution has to do more than be the highest law of the land, for it to work it needs to "be felt as well as comprehended, a constitution that engaged the intellect, but, more importantly, stirred
The text also alluded to previous court cases, such as Marshall vs. Court and the National Back, where Congress was declared to having unconstitutional implementations, that were based on a loose structure. Summary Context and Point of View The Court had
The new Constitution and Charter were controversial in the provinces, but Pierre Trudeau’s determination