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HISTORY 306

HISTORY 306. PROJECT SYNOPSIS/UPDATE “The Judiciary’s Changing Role In Canadian politics”. Synopsis. Three distinct periods of judicial precedent:. 1949-1982 The Court as Constitutional Arbiter.

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HISTORY 306

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  1. HISTORY 306 PROJECT SYNOPSIS/UPDATE “The Judiciary’s Changing Role In Canadian politics”

  2. Synopsis Three distinct periods of judicial precedent:

  3. 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

  4. 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

  5. Classical Legislative Formula

  6. 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.

  7. The New Legislative Process

  8. The Problematic Balance:

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