The Judiciary's Evolving Role in Canadian Politics: From Constitutional Arbiter to Rights Activist
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This project examines the transformative role of the judiciary in Canadian politics over three key periods. From 1949-1982, the courts acted as constitutional arbiters interpreting the division of powers. During 1982-1992, they embraced a new role as rights arbiters, facilitating a dialogue between judicial and legislative branches, emphasizing individual rights under the Charter of Rights and Freedoms. Finally, from 1992-2007, the judiciary evolved into an activist role, focusing on expanding rights and dictating legislative changes, thus challenging the balance of power between courts and parliament.
The Judiciary's Evolving Role in Canadian Politics: From Constitutional Arbiter to Rights Activist
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Presentation Transcript
HISTORY 306 PROJECT SYNOPSIS/UPDATE “The Judiciary’s Changing Role In Canadian politics”
Synopsis Three distinct periods of judicial precedent:
1949-1982The Court as Constitutional Arbiter • Primary role as interpreter of Constitutional division of powers between the provinces and the Federal Government. • Citation: Sections 91/92 of Constitution • Citation: Judicial decision regarding federal/provincial liquor licensing conflict • Citation: Supreme Court reference re: constitutional amendment
1982-1992The Court as Rights Arbiter • Role of the court changes to incorporate new Constitutional space for individual rights. • Citation: Example: Free Expression Rulings regarding tobacco advertising and Bill 101 • Relationship between judicial and legislative branches becomes a dialogue • Citation: Charter document – Focus on Sec. 1, Sec. 33 • Guarantees Rights “ . . . subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (S.1) Effects of “Reasonable Limits Clause” on Speech Legislation • Legislative Oversight: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” (S.33) Effects of “Notwithstanding Clause” on Bill 101
1992-2007Activist/Legislator • Post-92 Supremes emphasize new sections of the Charter • Stress placed on Sec. 15 and Sec. 24 • Expansion of Essential Freedoms • Expansion of “Judicial Remedy” • Changing the law, rather than upholding/striking down • Egan v. Canada & Same-Sex Marriage • Expansion of Sec. 15 – “Reading in” and “Un-Enumerated Grounds” • New Brunswick French Schools • Imposition of a legislative time-limit before court changes the law • Emphasis on prescriptive solutions undercuts dialectic relationship between courts and parliament.
