Final Exam Canadian Politics

Criticism of the Charter

• it argues that federalism is not enough

• does it infringe on democracy by forcing legislation to be consistent with it, which is determined by the courts

arguments for the Charter

• judicial review has been around for ages, elected officials always report to some unelected power

• Canada is a liberal democracy, and those principles of equality and individual liberty do not coincide with democracy either

• they protect against majorities using power to violate rights by entrenching them past Parliaments reach

Section 1 of the Charter

Limitations Clause: government can place reasonable limits on the Charter as long as the can demonstrate it’s justified (Sharpe), and redo every 5 years

notwithstanding clause

(Section 33) can limit 2, 7-15: fundamental freedoms, legal rights, equality rights, within reasonable limits as prescribed by law

Oakes Test - presumption of innocence

used to prove the governments limitation of a freedom is reasonable:

• issue is pressing and substantial (law was important and necessary)

• the means has direct connection to the goal

• will impair the Charter right as minimally as possible

• Proportionate effects

(Oakes was lost because while they could prove it was important, they couldn’t prove there was no other way to do that)

Section 2

Fundamental Freedoms: Association, Religion, Expression, Peaceful Assembly, Opinion, Thought, (AREPOT)

Section 3

democratic rights

• limits who counts as every citizen, but cannot be exempt

• voting

Section 4

• no government shall last longer than 5 years, unless in crisis of or apprehension of war

Section 5

Parliament must sit at least once every twelve months

Section 6

Mobility rights:

• CITIZENS hav the right to enter, remain in, and leave Canada

  • as well as move and take residence in any province

Section 7

Life, Liberty, and Security

Section 8

right to be secure against unreasonable search and seizure

Section 9

right to not be arbitrarily detained or imprisoned

Section 10

Upon detention, right to be informed of the reasons, retain counsel, and right to an arraignment through habeas corpus

Section 11

Once charged, right to

• be informed

• tried

• presumed innocent

• reasonable bail is not denied w/o reason

• not to be witness

Section 12

right to not be tortured

Section 13

double jeopardy clause: evidence provided by a witness cannot be used to incriminate said witness, unless in relevancy to the court proceedings

Section 14

Right to inerpreters

Section 15

every individual is equal before and under the law, and has the right to equal protection and equal benefit from the law

What was Daniel Salee’s talk on

how far is Canada willing to go for liberal democracy - will they allow separate governing structures?

Three categories of indigenous people recognized in 1982

• FN: ‘politically correct’

• Innuit: Circumpolar

  • Metis: Prairies

Indian Act

• set rules for governing Indian reserves

• defines who is and who isn’t

What was the point of residential schools?

Indigenous peoples were inferior to the colony, and slowing down development, so the government thought they should civilize them by taking them away from who they know and assimilate them

when did the last residential school close

1996

Treaty rights

from the original treaty with the British Crown giving them title

Status Indians

registered, historically has always been a LEGAL construct, not anthropological

Involuntary Enfrachisement

against the will of FN to combat the rise of aboriginal political mobilization

when did the Aboriginal people receive the right to vote?

federally - 1960

White Paper on Indian Policy

Trudeau’s attempt to eliminate status and assimilate everyone into one “Canadian” mainstream

Comprehensive claims

addressing first nation’s right to land not subject to treaties

specific claims

addressing issues arising when the terms in treaties are not being recognized

Sparrow test

tests reasonable infringement on Aboriginal rights, the same as Oakes but must have made reasonable consultation with the group

van der peet test

establishes criteria to determine the existence of an aboriginal right (must be consistent with what existed prior to contact - logging doesn’t count Marshall Cases)

procedural eqality

requires the state to apply the law equally

substantive equality/procedural equity

state recognizes disadvantaged groups may require equity

UNDRIP

4 opposed (US, AUS, NZ, CAN) 11 abstained, 45 articles protecting rights, specifically prohibiting past governmental behaviour

S 35 of Charter

Aboriginal rights, continuously unfinished

Meech Lake 1987

agreement to amend the constitution with the goal of getting Quebec’s consent. as such, the centerpiece was around recognizing Quebec as a distinct society

Why did Meech Lake Fail?

Manitoba and NFLD were the only two provinces to not ratify within the due date, and even once pushed to do so, the Manitoba vote failed because Elijah Harper solely voted no on behalf of Aboriginal peoples.

• the accord was so complex that it needed unanimous support to ammend

Charlottetown Accord 1992

Agreement between Feds, Prov, Aboriginal peoples to amend org. by Joe Clark. Main goals:

• Qubec’s consent

• est. self-govenrment

• reform the senate

Why did the Charlottetown Accord fail?

Canadians rejected it in a referendum in 1992

• the west didn’t feel they had gotten Triple-E Senate

• Quebec thought the equality of provinces demoted them

• Trudeau had come out of retirement to criticize it

What was Premier Bourassa’s roles

Meech Lake: Minimum demands Charlottetown: Maximum

• For Charlottetown, he passed Bill-150, promising a referendum if the amendment wasn’t done

What were the consequences of Meech Lake

• Quebec created the Bloc

• Western Alienation led to the Reform Party

  • rugged individualism

What is Bill C-110?

Act Respecting Constitutional Amendments

• five regions of Canada must consent (Atlantic, Quebec, Ontario, Prairie, BC)

  • this gives symbolic vetoes to Quebec and Alberta

What is the second sovereignty Referendum in Quebec

After the failure of Meech and Char, 49.4% of Que voted for sovereignty, leading the government to ask the SC if this was feasible

• leads to the Secession Reference Case

Secession Reference Case

• only if principles of federalism, democracy, ROL, and respect for minorities are followed

Clarity Act

Parliaments official listing of a province’s right to separate under strict guidelines

• P holds discretion vote to decide if the referendum question was clear or not, and if the majority was clear or not

• “clear” is never defined

• but if they vote yes, then they’ll negotiate the terms

critical election

election with sharp and durable realignment between political parties, usually representing a fundamental realignment of pre-existing cleavages (Kim Campbell’s loss counts)

What must a government do if it loses confidence

resign or seek a dissolution

what is Trudeau’s appointment technique?

list eligible candidate made by non-partisan regional committees

Why didn’t the fathers of confederation devise more exclusive divisions of power

they wanted more important powers, so they compromised

who did NOT receive e. payments in 2023/24

BC, Al, Sask, NFLD