The Canadian Charter of Rights and Freedoms or the Charter is the bill of rights that are found in the Constitution of Canada; thus, forming the segment of the Constitution Act, 1982. The Charter warrants the people of Canada specific political and civil rights from the actions and policies of all levels and areas of the government. Nonetheless, the Bill of Rights is merely a federal law other than a constitutional manuscript, whereby as a federal law it is prone to amendments through the ordinary legislative procedure and it has no application to provisional laws. The responsibility of enforcing and interpreting the Charter falls within the jurisdiction of the courts, where the Supreme Court has the ultimate power to deal with issues that relate to the Charter. Such supremacy is confirmed by section 52 of the Constitution Act, 1982. With such powers the Supreme Court has taken this opportunity to strike down any unconstitutional parts or statutes that violated the rights of people of Canada. However, such power has been received with a lot of negativity over the past years, especially from the legislature which indicated that the role of the court was to interpret the laws rather than enforce it. This essay will examine whether Parliament, not the Supreme Court of Canada, ought to determine the scope of rights and freedoms.
The parliament and not the Supreme Court ought to determine the scope of the rights and freedoms imposed on the Canadian Charter, as being that they are a group of people they are free from bias. Judges are humans and for that reason, they are not perfect and in one occasion or the other they may be prone to favoring one side than the other. However, as a general rule it is presumed that judges should be free from personal interest biased construal one way or the other (McLachlin, 1997). Nonetheless, judges are also sometimes challenged by this presumption and their interpretation of the Charter may be compromised at this point. Being that even though they may try in their efforts to ensure that they make a decision that favors the appropriate group their unconscious beliefs and premises concerning what is just, right, natural and normal may still influence their decisions when it comes to a matter that relates to the constitution. Therefore, with judicial bias influencing the decisions by the Supreme Court, it is too much for them and for the reason such power should be bestowed on the Parliament. Being that the parliament deals with the majority of the citizens and all are represented by their electorates for that the parliament is in a better position to ensure that the scope of rights and freedoms are given the appropriate enforcement that it requires.
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The powers that have been bestowed on the Supreme Court undermine the parliamentary supremacy, which is something that has been provided for under the Constitution. One of the scholars indicated that the rights of people are best protected by the Parliament and not by the Constitution, which is construed by courts. Most scholars have argued that giving the Supreme Court so much power has led to its politicization, which is not, a good thing considering that if it is politicized the interest of the public will not come first. According to Mandel (1989), the Charter has become a tool that is being used for the advancement of the private interest of professionals, corporations and other privileged groups. This is being done at the expense of the unemployed, workers, aboriginals, other economically and socially disadvantaged and racial minorities in Canada. Additionally, most of the scholars have gone ahead to indicate that the Charter has been Americanized, as any rights that people feel are unfair they run to the courts for amendment (McLachlin, 1997). However, these cases are not fair for the people who expect their rights to be enforced only to have them being struck down for the benefit of the elite in the society. Therefore, where the parliament determines the scope of these rights then it will be in a position of ensuring that the rights of the minority groups are not infringed by the majority. Moreover, through checks and balances from the Judiciary they will ensure that they will do a good job. Thus, giving this much power to the judiciary is denying the majority their rights and freedoms that are provided under the constitution.
According to Morton and Knopff (1992), they proposed that the scope for rights and freedoms provided for by the Charter should be given to the parliament. In their explanation they indicated that laws have been politicized as the courtrooms have now become a political arena making the judges “politicians in robes”. The courts should be limited to enforcing the traditional or original understandings in a restrained form rather than becoming an institution that exerts its policy authority so as to keep the political institutions relevant in these changing times (Sigurdson, 1993).The essence of separation of powers in a government is to ensure that one branch of government does not exert too much power over the other. However, the powers that the Supreme Court of Canada has been given does not put into consideration the doctrine of separation of powers. Considering that today the courts no longer examine the provisions of the Charter they go ahead and make their own laws, which they expect other branches of parliament to follow to the latter. Thus, the courts have taken an advantage of the power that they have been given to influence other branches of government which is not fair; hence, giving this power to the parliament would be best way to neutralize the situation.
In conclusion, it is imperative for the government of Canada through the constitution, as well as considering the changing time consider the separation of powers to ensure that people that are provided for with the rights and freedoms as per the Charter. Unless this is done the judiciary will continue to be both Americanized and politicized; thus, putting the rights of the minority at risks while furthering the rights of the majority in the society. Therefore, there is a need for equilibrium in the legal system to ensure that the interest of the people is safeguarded.
- McLachlin, J. (1997). Judges and Dominant Ideology. Just Words: Constitutional Rights and Social Wrongs, 103.
- Sigurdson, R. (1993). Left-and Right-Wing Charterphobia in Canada: A Critique of the Critics. International Journal of Canadian Studies, 7(8), 95-115.