POLI 324 Lecture Notes - Lecture 12: Section 33 Of The Canadian Charter Of Rights And Freedoms, Fundamental Justice, Henry Morgentaler
15 Jun 2018
School
Department
Course
Professor
POLI324
Legal Rights: Sexual Assault and the Criminal Code
Lecture Objectives
• To understand the ability of Parliament, through non-constitutional means, to reverse Charter
principles by the Supreme Court of Canada.
• To consider legislative responses to activist judicial decision involving sexual assault policy
(Seaboyer, Daviault, Mills).
• To understand a new distinction: weak-form versus strong-form judicial review (Tushnet)
• To consider the nature of supreme court power – Supreme Courts as implementer-dependent
institutions (Hall)
Lecture Outline
1. Section 7 and the Principles of Fundamental Justice.
2. Weak-form versus Strong-form Judicial Review
3. Courts as Ipleeter-depedet istitutios
4. Legislative Responses to Judicial Invalidation:
• Seaboyer and Bill C-49.
• Daviault and Bill C-72
5. Conclusions
1-Section 7 and the Principle of fundamental justice
Legal Rights
Life, liberty and security of person
Section 7. Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with due process of law the principles of fundamental justice.
- General approach by the Supreme court
- Wh the phrase the priiples of fudaetal justie? – new phrase, that had never appeared
before.
- The Trudeau lierals didt aept due proess of la
- Eerthig after eept is the liitatio.
- Brayer said: the phrase due process of law has given a substantive application, which is simply
about how the law is applied
- A procedural approach is about the effect of the law
- Clear legislative record
- SCC argued that section 7 must have a substantive application.
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- “CC argued that e at rel o the legislatie reord, the are ot authoritatie. The “CC
refusig Fraers itet
Lets go ore ito setio
You at depried of this if ad ol if the liitatio is i aordae of the priiples of the
fundamental justice. Under that if it is accordance, under a free and democratic society. Another aspect
of fraers itet:
The court argues: If you cant justify it in accordance with the principles of fundamental of justice then
ou at justif it.
What did the fraers ea the fudaetal priiple of justie?
- Section 7 can be limited if the legislation is consistent with fundamental justice and it would not
be arbitrary in its application of the legislation. According to this approach, a law that violates a
security of a person can only be considered consistent with the principles of fundamental justice
if its ot aritrar i its appliatio.
security of the Person
• In Hunter v. Southam, the SCC rejected that a procedural approach to section 7 should be
adopted because of the substitution of principles of fundamental justice.
• Istead, the “CC argued that seurit of the perso protets oth phsial seurit and
emotional security.
• Morgentaler as an example of the duality of security of the person being infringed.
Morgetaler ioled a hallege to Caadas aortio las, ad i partiular the riial ode, uder
the criminal code abortion were legal provided that they occurred as a therapeutic committee. Must
occur in a public hospital, and the Therapeutic committee must make the decision on whether you could
go forward with the abortion.
The SCC ruled that the criminal code process, governing the provision of abortion, In a legal context is a
violation of section 7, the reason being the Criminal Code outline a process to authorizing abortion, but
the hospitals eret folloig it. “o it as a aritrar appliatio of this legal fraeork of aortio.
BC Motor Vehicle Reference [1985]
The Minutes of the Proceedings of the Special Joint Committee were admissible but without much
weight given the inherent unreliability of such speeches and statements. The comments of a few public
servants, however distinguished, could not be determinative in light of the many actors and the role of
the provinces in arriving at the Charter. To cast the interpretation of s. 7 in terms of the comments made
at the Joint Committee Proceedings would freeze the rights, values and freedoms expressed in the
Charter as of the moment of adoption and deny it growth and adjustment over time.
2-Weak-form and strong-form judicial review
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• Tushets approah for uderstadig the eergee of parliaetar ills of rights i
Canada, New Zealand, United Kingdom and Australian State of Victoria.- the research question
that hes exploring is whether judicial decision endures.
• He defines the US as being a strong-form system. New bill of rights emerging like Canada in
1982.He argues that theres a new model of Bill of Rights emerging. Strong-form system where
he places the US so presidential system. And then new model which he calls weak-form system.
• An attempt to ensure that Parliament, despite the introduction of a Bill/Charter of Rights.
• He said those new Bill of rights; are preventing the courts from having the final word. He focuses
on the missing inclusion of the Notwithstanding Clause. He says that if the SCC decision can be
reversed by a mechanism it is a weak-form judicial review. He says the strong-form is the US
ause the dot hae the Notithstadig lause. He puts Caada as the strogest of the
weak-for sste folloig that is the UK ad Ne Zealad. He does etio that eak-
forms do also become strong forms system.
• Considered to be weak-form judicial review systems.
• Tushnet argues that this model is only in theory, he argues that in practice, courts even in those
weak-form systems has the final word. Because of the inclusion of the Notwithstanding clause.
At the end of the day these mechanisms are never used. They revert to strong-form system.
Kelly disagress.
• Contrasted to the American model – strong form judicial review.
• He is not making the claim that judicial decision in the US cannot be reversed, he is just saying
that it is much more difficult than those parliamentary systems, and the mechanism to employ
to reverse a judicial decision in the US is very hard and it is highly unlikely that it can change.
Weak-form is much easier.
• Judges can change precedents in future cases (US). The method of appointment to supreme
court is one of the argument that tushnet make in order to explaining why is it hard to reverse
judicial decision. Judges appointed to supreme court are life-time appointment. Contrasting that
to Canada, and its parliamentary system, in Canada there is mandatory retirement at the age of
75, and therefore the court is more consistent in the US, and it is more malleable and
changeable in Canada. US supreme court is a strong from system, it is unlikely to change.
• You can have a constitutional amendment in the US that reverses a supreme court decision. For
example; same-sex marriage. He argues that the difficulties in the US is that constitutional
amendment is quite sonorous process, you need 2/3 of the state agreeing to the state and then
you need Congress approval. Reversal of a judicial decision through constitutional amendment is
quite different.
Judicial Review Systems
Strong-form
Weak-Form
-American Model with an entrenched
constitution with judicial review
-Parliamentary model—statutory and entrenched
constitutions
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Document Summary
Legal rights: sexual assault and the criminal code. To understand the ability of parliament, through non-constitutional means, to reverse charter principles by the supreme court of canada. To consider legislative responses to activist judicial decision involving sexual assault policy (seaboyer, daviault, mills). To understand a new distinction: weak-form versus strong-form judicial review (tushnet) To consider the nature of supreme court power supreme courts as implementer-dependent institutions (hall) Lecture outline: section 7 and the principles of fundamental justice, weak-form versus strong-form judicial review, courts as (cid:858)i(cid:373)ple(cid:373)e(cid:374)ter-depe(cid:374)de(cid:374)t i(cid:374)stitutio(cid:374)s(cid:859, legislative responses to judicial invalidation: Seaboyer and bill c-49: daviault and bill c-72, conclusions. 1-section 7 and the principle of fundamental justice. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with due process of law the principles of fundamental justice. New phrase, that had never appeared before. The trudeau li(cid:271)erals did(cid:374)(cid:859)t a(cid:272)(cid:272)ept (cid:862)due pro(cid:272)ess of la(cid:449)(cid:863)
