Charterofrights-fororagainst

Charterofrights-fororagainst - Chapter 4 Arguments in...

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Unformatted text preview: Chapter 4 Arguments in Opposition to the Charter The Charter of Rights and Freedoms is a failure. It has only main- tained and deepened the worst aspects of Canadian history- elitism, lack of accountability, arbitrary rule, and a host of other characteristics associated with an unjust sociery. If progress is defined in terms of improving the lot of the most unfortunate in sociery, then the Charter must be viewed as a misguided and misunderstood mistake, a wrong turn on the long road of Canadian history. History The history of Canadian politics and jU"l'lPrudence tells a tale that should have given Charter drafters ancf'commentators cause for concern. Relevant considerations include the history of progressive reform in Canada, the traditional function of Canadian courts, 93 94 Canadian PoliticalDebates and the pattern of recruitment and training. As well, although the length of experience with the 1982 package is relatively short, the American historical record may provide additional insights into the wisdom of constitutional rights. Sources of Progressive Reform Progressive reform in Canada has been a product not of the courts but of the legislatures and cabinet leadership. The creation and continuation of this country has always been, above all, an act of political will. Canada initiated welfare state reforms in most cases sooner than the United States, and in some cases, such as national health insurance, to the exclusion of it. 1 The advances made by labour were accorded legitimacy by successive governments, in many cases provincial ones. The courts, on the other hand, were silent in the face of flagrant violations of fundamental justice. In Cunningham v. Tomey Homma (1903) the Judicial Committee of the Privy Council upheld the right of a provincial legislature to disenfranchise citizens of Japanese and Chinese ancestry. In the Japanese Canadians Case (1946) the Committee refused to strike down federal orders-in-council enacted during the war that evacu- ated Canadian citizens of Japanese ancestry from the west coast) confiscated their property, placed them in concentration camps, and pressured them to be "repatriated" to Japan. The inappropri- ate use of the War Measures Act to accomplish these measures was questioned by neither the Supreme Court nor the Judicial Com- rnittee.? During the War Measures Act imposition of I970 the Supreme Court could not be stirred to restrain the questionable incarceration policies of the federal cabinet. Its decisions on the Bill of Rights of I960 were characterized by rampant confusion and sloppy draughtsmanship. Traditional Role of Courts The traditional role of the courts in Canada prepared it poorly for any significant role in assuring liberties. Historically, the function of the courts has been adjudicative in nature. This means that the courts have had the responsibility for establishing legal meanings in actual disputes between individuals or between individuals and the Charterof Rights and Freedoms:Con...
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Charterofrights-fororagainst - Chapter 4 Arguments in...

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