Canadian Case Study

In contrast to the Canadian parliamentary system, which has remained fairly static and unchanged since Victorian times, the Canadian legal system has undergone a tremendous evolution over the last century and a half. When looking at Canadian history in depth one discovers the repeated movement to take power from the superiors or the overruling and place it into the palms of the people. As seen through examples our western law (canadian law) has slowly branched off from the supremacy of God (mosaic law), to the supremacy of the monarchy (bristish law), finally to a realization of the importance of citizen participation in the creating, governing, and administrating of the laws (Greek law).

The entrenchment of rights in the Canadian Constitution comes after long experience with a system of parliamentary supremacy. The American judicial tradition of treating the written constitution as fundamental law cannot have an instant Canadian counterpart. Thus, it does not follow that the Canadian courts will necessarily claim a role comparable to that of courts in the United States, nor is it clear that the representative bodies in Canada would tolerate such a judicial assertion of power. Opposition by government bodies to the Charter have already occurred in Canada, where the Parti Quebecois government of Quebec invoked the “notwithstanding the Canadian Charter of Rights and Freedoms” clause for the purpose of protecting their language laws from attack under the charter. This report will attempt to note some of the common and distinctive features of the text of the two constitutions as well as to how they differ.

In response to the Supreme Court’s ruling in the Santa Fe Independent School District V. Doe (SFISD V. Doe) case, Chief Justice Rehnquist commented, “It [the ruling] bristles with hostility to all things religious in public life” (“United”). Separating religion and state has always been a matter of concern for the United States, as shown by the Establishment Clause in the First Amendment of our constitution. Although there have been many cases revolving around the relationship between the church and the state, SFISD V. Doe is among the most notable. By examining the background, reflecting on the decision, and analyzing the impact of the SFISD V. Doe case,

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

F.L. Morton examines the political impact of the Canadian Charter of Rights and Freedoms by comparing pre-Charter practices to post-Charter developments in five different areas: judicial behaviour, public policy, interest group behaviour, federalism, and executive behaviour. Morton presents the Charter through its continuity and change, beginning with the move away from Britain’s “unwritten constitution” and distinguishing the doctrine as constitutional supremacy that still depends on public opinion. He argues that due to the Charter’s constitutionality, Canadian courts are able to have a more active and influential role in interpreting and enforcing the listed rights which is a negative development in Canadian democracy.

Canada’s parliamentary system is designed to preclude the formation of absolute power. Critics and followers of Canadian politics argue that the Prime Minister of Canada stands alone from the rest of the government. The powers vested in the prime minister, along with the persistent media attention given to the position, reinforce the Prime Minister of Canada’s superior role both in the House of Commons and in the public. The result has led to concerns regarding the power of the prime minister. Hugh Mellon argues that the prime minister of Canada is indeed too powerful. Mellon refers to the prime minister’s control over Canada a prime-ministerial government, where the prime minister encounters few constraints on the usage of his powers.

The Judicial Committee of the Privy Council has made some controversial decisions in key cases in Canada’s past. When looking at the Canadian Founders intent for Canadian Federalism, many scholars argue that the Judicial Committee of the Privy Council has done a bad job following the founders’ intentions and intentionally decentralized Canada. The Judicial Committee of the Privy Council did fail in keeping in line with what the founders intended for Canada and may have even intentionally set out to decentralize the Canadian government, but this does not mean it had a negative impact on Canada. There are a number of cases that were seen by the JCPC that played a vital role in the decentralization of the Canadian government, yet

In order to bring these often very abstract issues to life, we will examine a selection of high profile and prominent decisions (mainly from Canadian courts, and frequently from the Supreme Court of Canada) which can be said to have changed the law, and in which the judges of the court have disagreed among themselves. Cases to be covered concern controversial issues such as Battered Woman Syndrome, Euthanasia/ Physician Assisted Suicide, Hate Speech, Marijuana Use, Obscenity/ Pornography, Prostitution, or topics in human rights (i.e., freedom of expression, national security and the right not to be tortured, or religious freedom). Analysis of cases will include exploration and examination of the philosophical aspects of crucial terms and concepts that appear in Canadian law, such as in the Criminal Code of Canada, or in the Canadian Charter of Rights and Freedoms.

In this essay, I will demonstrate that the Prime Minister is powerful and can cause many potential dangers by analyzing different elements inside and outside of our government over the period of different Prime Ministers throughout the Canadian political history.

This whole mess wouldn’t be dealt with until Archbishop John Hughes would step to the scene and would use this case of public schooling as a means to demand “religious liberty for Catholic immigrants… [and expand] the idea of what it meant to be an American.” He would go before the New York City Council making an “American constitutional religious liberty case” arguing that it was unconstitutional to force Catholic children to read and do the anti-Catholic ideals that were presented to them in schools and should be allowed to be given the proper funds to set up their own academic institutions. Not a single religion should be allowed to be implemented along more than another because this is not a case about religion but about the American people themselves. Sadly, his statements would be disregarded but that would not stop Hughes as he would ultimately take the case to the people and would rally Catholics to vote for the candidates who would fight for the cause. His case would be case and the people whom he told the people they should vote would win and a bill would pass that would end the instruction of religion in the New York public education

The necessity to limit the rights and freedoms of Canadians is illustrated and reinforced through the governments use of reasonable limits, ‘notwithstanding clause’ to limit individual rights and freedoms, and the occasional need for the government to have power extended above and beyond the limits prescribed in the Charter.

The Canadian Charter of Rights and Freedoms is an important milestone in Canadian history. An effort through rigorous debate and compromise gave birth to this document that defines our collective values and principles by guaranteeing and protecting the fundamental rights of its citizens. Prior to the Charter, there was no gurantee in Canada that rights and freedoms would not be taken away by legislation. The Charter also allows courts to render the constitutional duty so that any decisions made are consistent with those rights and freedoms. The Charter was established firmly in “The Constitution Act, 1982”, with the declaration of this act Canada escaped from the severe practice of concept of parliamentary supremacy. The Charter has an enormous effect on court’s decision power to award justice to important and debatable issues about policies that affect public. In awarding the verdict courts are not even reluctant to rewrite laws that violate the testament of the Charter. The judges have a duty to regulate the rulings of both provincial and federal governments which, disagree with the root value of Charter.

Alongside the protests of Parents, Students, the Supreme Court, and multiple news sources, the Ontario government has also been confronted with much criticism by countless Politicians, and The United Nations Human Rights Committee. In 2010, former Minister of Education of Alberta called for the end of Public funding of Catholic schools. “The second thing that concerns me is that we're conveying an advantage to one religious group that isn't available to others. There are no Mormon separate schools, or Jewish schools or Sikh separate schools" (Dave King). Mr. King reiterates the problems of the Catholic school board and emphasizes how the government shows favour over Catholics. Most prominently, in 1999 the United Nations released a statement that called the division of the Catholic and Public school boards discriminatory and advised the province to, “eliminate discrimination on the basis of religion in the funding of schools in Ontario.” Many thought that the incident would put pressure on the government to abolish the separation of the school boards, but almost 2 decades later, the debate of the Catholic schooling system still rages

Since the Declaration of Independence was drafted founding itself on individual privileges and choice, happiness and democracy, a multitude of concerns have kindled the rights disputes that we see making law an active and continually growing and interesting area of interest today. Issues arose included women suffrage, civil equality, slavery, the ability to hold a religious forum, along with many others. And, though the context and times have significantly changed with these concerns there still remains a constant struggle between state, religion, and schools. Prayer in public schools is still a topic of conversation. The giving of religious gifts to administrators and the funding of schools through tax-payer monies are

In common law, judges interpret the law and judge apply it based on precedent from previous cases; compared to civil law which focuses on written legislature. In Canada, judges are given the chance to be activists. If a judge believes a citizen’s rights, under the Canadian Charter of Rights and Freedoms, are being violated, they are given the power to rule against the unconstitutional law made by the elected branches of government; this concept is referred to as judicial activism (Hausegger, Hennigar, & Riddell, 2015, p. 123). Judicial activism ensures the individual rights of each person are upheld, but the concept is controversial. Judicial activism is problematic because it awards an authoritarian level of power to unelected judges, which goes against Canada’s democratic ideology where elected officials decide and vote on the laws (Cameron, 2009, p. 27). I argue that judicial activism should not be a part of Canada’s judicial process because it gives too much power to the courts and disrupts the democratic process of