Rather than simply deciding which level of government ought to have jurisdiction over a particular public policy, the judiciary has now been invited to hold legislative decisions up to scrutiny against a higher constitutional standard, and perhaps decide that no level of government can legislate in a given area.
Section 525 of the Charter gives the courts of Canada their authority to declare legislation inoperative, but it is section 16 that prescribes their mandate, guaranteeing as it does the rights and freedoms enshrined in the Charter "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Thus the rights set out are not absolute rights, but require that the judiciary …show more content…
Charter is a bad thing is based on the legitimacy of judicial review in a democratic society - judges, who are neither elected to their offices nor accountable for their actions, are vested with the power to strike down laws that have been made by the duly elected representatives of the people. judges have a great deal of discretion in "interpreting" the law of the constitution, and the process of interpretation inevitably remakes the constitution into the likeness favoured by the …show more content…
The legislative body often follows that suggestion, or devises a different law that also skirts the constitutional barriers
While it is generally the case that Charter decisions leave some options open to the competent legislative body, we must acknowledge that there may be some circumstances where the court will, by necessity, have the last word. There appear to be three situations where this will be the case: (1) where section I of the Charter does not apply; (2) where a court declares that the objective of the impugned legislation is unconstitutional; and (3) where political forces make it impossible for the legislature to fashion a response to the court's Charter
Section 525 of the Charter gives the courts of Canada their authority to declare legislation inoperative, but it is section 16 that prescribes their mandate, guaranteeing as it does the rights and freedoms enshrined in the Charter "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Thus the rights set out are not absolute rights, but require that the judiciary …show more content…
Charter is a bad thing is based on the legitimacy of judicial review in a democratic society - judges, who are neither elected to their offices nor accountable for their actions, are vested with the power to strike down laws that have been made by the duly elected representatives of the people. judges have a great deal of discretion in "interpreting" the law of the constitution, and the process of interpretation inevitably remakes the constitution into the likeness favoured by the …show more content…
The legislative body often follows that suggestion, or devises a different law that also skirts the constitutional barriers
While it is generally the case that Charter decisions leave some options open to the competent legislative body, we must acknowledge that there may be some circumstances where the court will, by necessity, have the last word. There appear to be three situations where this will be the case: (1) where section I of the Charter does not apply; (2) where a court declares that the objective of the impugned legislation is unconstitutional; and (3) where political forces make it impossible for the legislature to fashion a response to the court's Charter