The%20Court%20Party - The Court Party Morton Knopff - The...

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The Court Party Morton Knopff - The Charter Revolution and the Court Party - The 1980’s and 90’s will be remembered as the time of Canada’s “ Charter Revolution” -A long tradition of parliamentary supremacy has been replaced by constitutional supremacy and almost judicial supremacy -Not only are judges now influencing policy to a previously unheard of degree, but lawyers and legal arguments are now shaping political discourse and policy formation -The contrary fates of the 1960 Bill of Rights and the 1982 Charter illustrate the magnitude of the Charter Revolution -Areas of conflict or similarity between the Bill of Rights and the Charter : 1. Bill contained neither a “right-to-counsel” warning or an exclusionary rule that would prohibit the use of otherwise reliable evidence that had been obtained in a manner that violated the rights of the accused - the Charter contained both 2. No conflict between the Bill of Rights and the Charter on abortion rights 3. Bill only had equality of application of laws as they related to racial and sexual discrimination - Charter actually has equal laws -The courts became much more activist after the 1982 advent of the Charter -they have also become more innovative in interpreting the laws they uphold -There has of course been criticism - people are accusing the courts of excessive activism -Critics have encourage the govt’s use of the notwithstanding clause to override controversial court decisions -People are calling for more transparent and accountable appointment for Supreme Court Justices -However, that is not to exaggerate political opposition to judicial power -the Charter remains immensely popular with Canadians -However, the country is divided on the question of whether judicial power should be reduced -It is nonsensical to say that the tradition of judicial silence prevents judges from replying to their critics -They speak through their rulings -Even though the Courts have been “drawn into the political sphere to a degree unknown prior to 1982” they still haven’t actually been drawn in very far -relative to under the Bill of Rights era they’ve been extremely active but in absolute terms, not really that much -The charter revolution is driven only partly by the document itself -more important are its judicial interpreters -more important still is a coalition of social interests - the two combining to be the Court Party The Role of Judges -The charter itself is not so much the cause of the revolution as the means through which it is carried out. -A revolution cannot occur without leaders and the support of interested classes -The charter rarely required the full extent of legal transformation undertaken in its name - judges catalyzed that -The Swedish and American examples, as well as the Bill of Rights, speak to the idea that judicial restraint is possible with a document like the charter
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-The judicial activism surrounding the Charter was a choice of the judges -Constitutional documents are generally vague enough to allow both activist and restrained
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This note was uploaded on 02/27/2012 for the course BUSINESS 101 taught by Professor All during the Spring '09 term at McGill.

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The%20Court%20Party - The Court Party Morton Knopff - The...

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