Term Test 1

Canadian Charter of Rights

The Canadian Charter of Rights and Freedoms (1982) functions as the highest law in Canada, providing a constitutional framework that empowers the judiciary to limit government power through judicial review. Whether these limits are "appropriate" is a central question of Canadian legal philosophy, as the Charter attempts to reconcile the Lockean focus on protection from the state with the Hobbesian necessity for protection by the state.

1. Individualist Limits: The Lockean Counter-Weight

The Charter’s primary mechanism for limiting government is the codification of Fundamental Freedoms (Section 2) and Legal Rights (Sections 7–15). These provisions reflect a Lockean strand of Enlightenment thought, which views government as a product of trust intended to protect inherent individual liberties.

• Protection FROM Government: This strand emphasizes that citizens should be left alone to pursue their own rational projects.

• Skeptical Foundations: Locke’s skepticism about ultimate knowledge suggests that the state has no logical basis for prescribing a specific "formula for the good life" or suppressing expression, making judicial review a necessary check on tyranny.

• Enforcement: Under Section 24, the judiciary can provide remedies for rights violations, such as the exclusion of evidence (Section 24(2)) if its admission would bring the administration of justice into disrepute.

2. The Section 1 "Safety Valve": Protection BY Government

The Charter ensures that these individualist limits are not absolute through Section 1, which allows for "reasonable limits" that are "demonstrably justified in a free and democratic society". This reflects a Hobbesian strand of thought, which argues that the core of government is the power to coerce order to prevent conflict.

• Justifying State Power: Section 1 acts as a "second bite of the cherry" for elected governments, allowing them to justify a rights infringement if it serves a rational and purposeful goal, such as maintaining "peace, order, and good government".

• Expert-Led Rationality: This provision also supports a statist strand of government, where the state uses scientific rationality and expertise to intervene for the common good—such as in rehabilitative justice or social welfare.

3. The Critique of Appropriateness: Victims vs. Accused

A major debate regarding the "appropriateness" of these limits is whether the Charter focuses too heavily on protecting citizens from the government at the expense of protecting them by the government.

• Victims' Rights: Critics argue that the "explicit and fundamental" legal protections for the accused (Sections 7–14) can hamper the state’s ability to protect vulnerable citizens, such as victims of domestic violence.

• The Statist Tradition: In Quebec, a more "statist" and rehabilitative tradition often views the individualistic focus of the Charter as an inappropriate limit on the state's power to pursue collective social progress.

4. Judicial vs. Democratic Authority

The Charter addresses the tension between "unelected judges" and democratically elected legislatures through two main features:

• Judicial Review: This is defended as a necessary protection against the "tyranny of the majority".

• Section 33 (The Notwithstanding Clause): This allows Parliament or provincial legislatures to temporarily override certain rights. This serves as an acceptance of provincial autonomy, ensuring that the ultimate limit on government power can be reclaimed by elected officials if necessary.

Ultimately, the sources suggest that the Charter provides a dynamic balance rather than a fixed set of limits. It protects the individual from state overreach while maintaining the state's capacity to justify collective action and maintain social order.

Mechanisms of Government Limitation

The Charter limits government power by establishing enforceable rights and a process for judicial oversight:

• Enforceable Rights: The Charter codifies fundamental freedoms (Section 2), legal rights (Sections 7–14), and equality rights (Section 15) [1–9].

• Judicial Review and Remedies: Under Section 24(1), anyone whose rights have been infringed can apply to a court for a remedy considered "appropriate and just". A key limit is Section 24(2), which mandates the exclusion of evidence obtained in a manner that infringes Charter rights if its admission would bring the administration of justice into disrepute.

• Application to All Government Levels: The Charter applies to both the federal Parliament and provincial legislatures in all matters within their authority

The Lockean Strand

The Lockean Strand (Protection FROM Government): This strand emphasizes universal human rationality and the right of citizens to be left alone to pursue their own projects. It views government as a product of trust intended to protect inherent rights. The Charter's fundamental freedoms and legal protections for the accused serve as a "Lockean counter" to state power.

The Hobbesian Strand

The Hobbesian Strand (Protection BY Government): This view argues that the core of government is the power to coerce order to prevent conflict. This is reflected in the Charter’s Section 1 "safety valve," which allows for "reasonable limits" that are "demonstrably justified in a free and democratic society". Section 1 is described as a "second bite of the cherry" for elected governments to justify their actions in the interest of "peace, order, and good government"