Quiz TERMS (1).docx - TERMS TO REVIEW FOR TEST PART I Oakes...

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TERMS TO REVIEW FOR TEST- PART IOakes Test:(pg., 171) The Charter imposes two types of duties on governing institutions. A firstorder duty ensures their own compliance with the guarantees of the rights and freedoms. The second order duty involves the courts reviewing the laws implemented by the executive branch. -The Oakes Test is part of the second order duty and is a standard imposed on the executive and legislative branches of the government to justify laws that infringe on protected rights and freedoms. Judges do not have the “free hand” to interpret the Charter and this test is composed of a series of strict rules that judges must follow. Also, it requires judges to defer to the elected branches whenever possible. So, the Oakes Test works to prevent the courts from using the Charter to seize power that properly belongs elsewhere.Example: Oakes Test was disregarded INITIALLY in the aftermath of 9/11. The executive branch of the federal government in Canada used its powers over national security to justify new laws and administrative procedures that violated individual rights. The courts deferred to the executive branch and failed to honor their second-order Charter duties. BUT when evidence was presented that innocent Arabs were having their human rights abused, the courts reasserted their proper role in the enforcement of constitutional values. Independence of the Judiciary: (Pg. 344-346) Controversial because while judges are expected tobe impartial and reject attempts by litigants and politicians to influence their decisions, their actual independence from the government is being compromised. For example, since a growing number of disputes are being settled out of court, the adjudicators and Justices of the Peace are appointed by provincial Attorney Generals for fixed terms. -What does this mean? Canadians are now dependent on adjudicators who may not only be unqualified for the job BUT also, their appointment (and reappointment) is based usually on party patronage. So, if adjudicators are appointed by a certain political party, controversial issues will make it hard for judges to remain independent.

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