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Limiting Rights

Limiting Rights: The Dilemma of Judicial Review

Copyright Date: 1996
Pages: 200
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  • Book Info
    Limiting Rights
    Book Description:

    Through an extended analysis of Supreme Court decisions involving limits on protected rights, Hiebert explores the issues surrounding judicial review. She explores how difficult it is for judges to determine the reasonableness of legislative initiatives and examines the considerable influence exerted by Canadian politicians in decisions about which legislative activities will be considered justifiable limits on protected rights. Politicians have, in other words, helped define the very constraints that the Charter was intended to impose on them.

    eISBN: 978-0-7735-6616-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-2)
  4. 1 Introduction
    (pp. 3-9)

    The Charter of Rights and Freedoms has been described as the single most important innovation of the constitutional changes of 1982¹ and the most radical break ever made with the Canadian constitutional and legal order “hitherto characterized by continuity and incremental development.”² The Charter, by establishing formal rights as the standard for evaluating the justification of legislative and executive decisions and designating courts to assume an authoritative role in resolving citizen-state conflicts, represents a significant institutional change to the Canadian political system.

    Much of the constitutional debate in Canada prior to the inclusion of the Charter in the constitution centred...

  5. 2 The Evolution of Reasonable Limits on Rights
    (pp. 10-31)

    One of the distinctive features of the Charter of Rights and Freedoms is the general limitation clause that precedes the enumerated individual and collective values. While Charter advocates of the late 1960s through the early 1980s expressed an unqualified enthusiasm and optimism for what could be achieved by entrenching rights, Charter drafters were more modest in their ability to capture all of the fundamental values in Canadian society. The significance of this clause is that it provides a means of reconciling the protected rights in the Charter with other fundamental values not specifically enumerated.

    The debate about entrenched rights, which...

  6. 3 Approaches to Limits
    (pp. 32-51)

    Despite the substantive changes made to the limitation clause, which make it significantly more difficult to impose limits on protected rights, the contested nature of democracy and the lack of specific guidelines as to what constitutes a democratic objective could give Parliament and the provincial legislatures the opportunity to promote a wide range of non-enumerated values that conflict with protected rights. The question of how much discretion legislatures should retain to impose limits on protected rights lies at the heart of debates about the relationship between citizens and the state and individuals and community. The limitation clause of section 1...

  7. 4 The Supreme Court on Section 1
    (pp. 52-88)

    The inclusion of a formal system of rights in the constitution has significantly increased the policy contribution judicial review assumes in the legislative process. Courts must now give content to the general and vague provisions of the Charter and assess the reasonableness of legislative decisions that conflict with protected rights. The Charter of Rights and Freedoms has changed the way decisions are made about the scope of citizens’ rights by giving to courts much of the responsibility, formerly held by legislatures, for determining the appropriate limits on rights.¹

    With the power to review legislative decisions about limiting rights, courts have...

  8. 5 Judicial Review and Democracy
    (pp. 89-125)

    The Charter of Rights and Freedoms raises important questions about the democratic character and legitimacy of judicial review. While judicial review in Canada has been practised for more than a hundred years in disputes over the division of powers, the Charter has added an important new dimension to this exercise — the assessment of whether legislative or executive decisions conflict with protected rights. This new authoritative role for courts invites divergent opinions about whether judicial review conflicts with democratic assumptions of representative government.

    The question of how to distinguish between allowable government action and the protected sphere of human activity is...

  9. 6 Rights and Federalism
    (pp. 126-149)

    Much has been said of the Charter of Rights and Freedoms’s nationbuilding effects for Canada, particularly in transforming citizens from passive spectators to assertive rights-bearers in constitutional debates.¹ What has not received the same attention, however, is the institutional side of the nation-building thesis. When entrenched rights were first included in the constitution many predicted that the Charter would undermine the territorial-based pluralism contemplated by Canadian federalism.² Yet little has been done to test the thesis in light of more than a decade of Charter jurisprudence.³ In this chapter the question of whether and how the Charter frustrates the territorial...

  10. 7 Conclusions
    (pp. 150-156)

    Although the Charter of Rights and Freedoms purports toguaranteerights, the symbolism implied in this word is unfortunate. Common sense dictates that rights cannot possibly be absolute. In a civilized society we can no more embrace the idea that liberty allows people to act in any manner they wish than we can give sanction to murder as a protected form of expression. Courts not only have to define and give scope to the Charter's vague provisions but must determine under section 1 when, under what circumstances, and for what reasons, rights can be limited.

    The significance of section 1...

  11. Notes
    (pp. 157-184)
  12. Index
    (pp. 185-188)