Study Notes for POLI-221: The Government of Canada - Week 5

The Canadian Charter of Rights and Freedoms was established in 1982 during the patriation process, serving to reinforce the rights-based aspect of Canada’s liberal democracy.

There exists a significant debate surrounding the balance between majority rule (democracy) and fundamental rights (liberalism).
The objective of a charter of rights is to prevent democratic majorities from using their power to infringe upon the rights of individuals, particularly minorities.
Malcolmson et al. state that a constitutional charter protects specific rights from being overridden by majority decisions. It incorporates these rights into the supreme law of Canada, beyond the influence of elected representatives.

Prior to the late 1950s, individual rights in Canada were primarily rooted in traditions and constitutional conventions following the British model.
The Canadian Bill of Rights was adopted in 1960, stating several human rights and freedoms, including but not limited to:
- Freedom of speech
- Freedom of religion
- Property rights
Although the Bill of Rights presented these rights, it was not constitutionally entrenched like the Charter; it was a federal statute.
Legal activists advocating for a charter of rights received backing from Prime Minister Trudeau, who aimed to formally integrate these rights into Canada's legal framework (Campbell, 2004).

The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act, 1982. The detailed provisions can be found in pages 274-281 of Malcolmson et al.
The Charter outlines several key rights and freedoms:
- Fundamental freedoms:
- Conscience and religion
- Opinion and press
- Peaceful assembly
- Association
- Key democratic rights
- Rights related to mobility, legal processes, and equality
- Provisions regarding official languages and minority language education rights
Importantly, the Charter applies solely to the public sector, as indicated in section 32(1).

While many Canadians support the Charter, some scholars, journalists, and political figures argue that the Charter poses a threat to parliamentary sovereignty.
Critics contend that the Charter enhances judicial power, allowing courts to invalidate laws passed by elected legislatures.
The critique posits that in promoting individual rights, the Charter may undermine the democratic authority of Parliament.

In negotiating the Charter, Prime Minister Trudeau made concessions to critics who opposed the supremacy of individual rights over parliamentary authority.
This resulted in the creation of section 33, known as the "notwithstanding clause."
- This clause enables Parliament or a provincial legislature to enact laws that remain valid despite conflicting provisions of the Charter.
Notable sections affected by the clause include sections 2 and 7-15.
The notwithstanding clause has seen limited application outside Quebec.

In 1981, Prime Minister Trudeau stated that the Charter allows legislatures to maintain authority over court interpretations, allowing elected representatives the final say in governance.
Justice Minister Jean Chrétien described the clause as a safety valve, suggesting it would mainly be invoked in non-controversial situations to enable legislatures to override certain Charter sections for significant public policy matters.

Quebec utilized the notwithstanding clause broadly from 1982-1985 to express dissatisfaction with the lack of a constitutional agreement during patriation.
A notable use in 1988 involved Quebec’s Bill 178, which was designed to protect language law from judicial scrutiny.
In Saskatchewan, Premier Grant Devine enacted a bill using the notwithstanding clause in 1986, shielding a back-to-work law from scrutiny by the Supreme Court.
A recent instance of the clause being used outside of Quebec was Ontario's 2022 Keeping Students in Class Act, which was repealed shortly after royal assent.

Bill 21 represents Quebec’s latest legislative effort regarding secularism and religious symbols in public sectors.
The debate surrounding Bill 21 traces back to mid-2000s, culminating in the Bouchard-Taylor Commission's 2008 recommendation to prohibit certain public-sector workers (judges, police) from wearing religious symbols.
This led to the introduction of:
- Bill 60 (Charter of Quebec Values) in 2013, addressing overt religious symbols.
- Bill 62 in 2017, which mandated people in specific public service interactions to uncover their faces to maintain state neutrality.

The Act Respecting the Laicity of the State, passed in June 2019 by the CAQ government, uses the notwithstanding clause to prevent public servants and authority figures from wearing religious symbols in their role.
Controversy exists regarding the preemptive use of the notwithstanding clause to protect against potential legal challenges based on the Charter (Sections 2(b) on freedom of expression and 15 on equality rights).
This situation illustrates the tension between the will of the majority and the rights enshrined in the Charter.
Although the notwithstanding clause was invoked, legal challenges remain possible regarding Bill 21's implications (refer to CBC article regarding legal challenges potential).

Comparison of Paul G. Thomas' views on enduring legislative power with Donald D. Savoie’s argument on the emergence of "court government" in Canada. Assess whether these viewpoints contradict or complement each other.
Exploration of Gary William O’Brian's concept of the territorial function of the Senate within Canada's political framework. Discuss the significance of this function in the context of Senate reform.