Since it was created in 1875, Canada’s Supreme Court being the most crucial governing institutions has spent mainstream of its account in the darkness. During the last four decades has this institution attracted huge media coverage or continued consideration by political researchers. The predominance of this significance was created by the introduction of the Charter of Rights that transformed the role of Supreme Court (McIntyre & Sanda, 2006). It commonly considered that before the enactment of the Charter of Rights in 1982, judges interpreted the law, and did not take it upon themselves to make the law. Therefore, it is apparent that Charter of Rights ushered in a new era of law-making in Canada by the judicial system. The Charter has actually transformed the Canada’s political landscape, revolutionizing viewpoints on the nature of law and political debate (Manfredi, 2007). In fact, the Charter has allowed the judges to make important decisions regarding policy issues that could have been addressed the Constitution only. The Charter has permanently transformed t6he manner in which policy proposals make their way to the Cabinet through the power of judges and where new procedures are designed ensure effective policy process. Hence, the charter has aspects of both permanence plus change with the country’s policy issues. The Charter embodies the zenith of the tendency from that of Britain tradition of an “unrecorded constitution” as a preferred technique of safeguarding basic rights and freedoms of Canadians (Baar, 2006).
The Charter of Rights has entrenched the role of judges as guardians and interpreters of the rights of the Canadians through policy decisions that have resolved many policy questions that could have not been addressed by the legal frameworks in the country. This thesis statement supports Dwight Newman analysis that the Charter of Rights has fashioned a predictable potential of Canadian judges undertaking decisions on different policy questions, where it will form the argument of the paper.
Canada was a free, as well as democratic nation before the enactment of the Charter of Rights, committed to elements like equality, freedom of expression, along with doctrines of fundamental justice. Since 1982, the Charter of Rights has fashioned a social along with legal insurgency in Canada growing the freedoms and rights of different groups and promoting judicial scrutiny. The primary changes availed by the Charter of Rights was the rights along with freedoms were given constitutional status where judges were given the power to reject laws, which violated these rights and freedoms (Feldman, 2005). In 1982, there was little rationale to believe this change could be impetus because the judiciary was considered as comparatively conservative institution, cautious, and incremental in its strategy to the law. Nonetheless, many thing things have changed during the primary 30 years of the Charter of Rights. Many laws have been struck down and several changed significantly, often new statutory interpretation plus remedial techniques the courts have created. These efforts have been possible through the Charter of Rights where judges have played a leading role in making sure policy issues are addressed through the appropriate mechanisms and reject those laws that seem to undermine the rights and freedom of the citizens through policy-making process (Manfredi, 2007). The influence of the Charter of Rights on legal actions has been theatrical in words plus actions. Judges in Canada have started to slice out a brave novel constitutional jurisprudence. Thus, the judges in Canada has emphasized that the legitimate position of the Charter of Rights qualitatively differentiates it from the constitutional Bill of Rights of 1960.
The Charter of Rights has already yielded discernible impact on many areas of public policy in Canada through the role of judges in expanding the rights and freedoms of Canadians. The most affected field by the Charter is the criminal law enforcement. It is believed that currently, 74% of all Charter of Rights lawsuits has entailed criminal based on the law enforcement. Citizens have enjoyed around 31% in these cases that is marginally greater than 27% success in noncriminal law litigations in Canada (Epstein, Andrew, Kevin, & Segal, 2007). The most apparent Charter of Rights impact on a solitary part of criminal rule has been the fight not in favor of impaired driving. Thus, 11% of all the Charter of Rights litigations have entailed defies to “breathalyzer” tests in addition to “check stop” works. The majority of these provoke part10 (b) of the Charter of Rights, which is the right to be conversant of the right to attorney on arrest for custody (Cameron, 2006). Classically, these cases claim that if a particular police officer does not provide advice to the driver of his right to a lawyer before being requested to offer a breath test, then it means that the proof should be precluded from trial. Through the efforts of the judges founded on the provisions of the Charter of Rights, the court approved this premise in the instance of Therens vs. The Queen. This resulted in dropping all the appeals since there were around 19,000 cases on “breathalyzer” offences waiting in Alberta only (Posner, 2008).
In addition, the judges have played a crucial role through interpreting and applying the provisions of the Charter of Rights in criminal law enforcement cases. Before the advent of the Charter, criminologists constantly characterized Canada as compliant to the “crime control” framework of criminal law other than following the “due process” framework. The criminal law in Canada is similar the majority of the European processes, has constantly strived to balance in favor of more efficient in the enforcement of laws away from rights of the alleged offender. The “due process” is recognized to be effective because it is apprehensive with exclusionary laws of proof, the right to a lawyer, as well as other bureaucratic protections (Makin, 2007). Whilst the wording of the Charter of Rights cautiously maintained some of the “crime control” aspects of the criminal law in Canada, the legal explanation of the Charter of Rights has adopted a number of the primary ideas of the “due process” framework (Bateman, Janet, & Russell, 2008). This has been instrumental to the role of judges in promoting policy decisions that are designed to promote the rights and freedoms of citizens based on criminal law. The judges’ role in policy issues was relatively evident in the Oakes case, where the Supreme Court rejected a “reverse burden” section in the Narcotics Control Act. The Court decisions were founded on the fact that the “reverse onus” breached sector 11 of the Charter on the right to be supposed not guilty, plus upended Oake’s conviction. The Charter of Rights considerably reinforced the rights of criminal defendants, strengthening the laws on phone wiretaps, safeguarding accuses persons from invalidating assumptions of guiltiness (Billingsley, 2006).
Additionally, a primary area of policy influence of the charter outside the enforcement of the Canadian criminal law enforcement has been Sunday final law. Unswervingly ruling against its individual Bill of Rights model, the Supreme Court decided that the national Lord’s Day Act imposed in Alberta breached the freedom of religion stipulation of the Charter of Rights (Hausegger, Matthew Hennigar & Troy, 2009). The serious flaw as argued by the court was that “religious reason” behind the scene. Consequently, this way of thinking was open for the likelihood that a Sunday final decree passed for clearly secular reasons-like usual day of rest-can still be allowable (Baum, 2006). Ontario has this decree, plus was as well challenged since it was supposed to have an “uneven effect” on those who professed other religions who by now were used to other days of the week to rest. This was possible through the provisions of the Charter of Rights as the judges argued based on these provisions and they succeeded. To this end, the Ontario statute continues to be challenged on the ground of religious discrimination contrary top section 15 of the Charter (Anand, 2006).
Another era of policy that has been successfully affected by the Charter of Rights verdict was restrictions of self-governing “political action committee (PAC) expenditure in federal elections. As a result, the National Citizen’s Coalition, which is a conformist public interest faction productively, challenged the stipulations of the Canada Elections Act (CEA) as a breach of the “freedom of expression” as provided in the Charter of Rights in Canada. The chief officer in charge of elections during this time maintained that it was not suitable to manage the voting founded diverse laws in various provinces plus perched the application of anti-PAC section. The Charter provisions allowed the judges to convince the judges in this case in the Court of Queen by making PAC to create a spending policy. This is a clear indication that the judges have the powers to influence policy issues through the provisions of Charter of Rights (Bateman et al., 2008).
Moreover, whilst the court’s verdicts based on the charter are the majority noticeable, plus theatrical signs of the influence of the Charter of Rights, they really symbolize Charter-induced act. Further to over 200,000 other courts’ decisions, the Charter of Rights has functioned as a vehicle for transformation all through political organization. The interest group conduct, the behavior of elective political leaders, as well as the politics of the federal system have all been impacted by the espousal of the Charter of Rights (Macfarlane, 2009). The most noteworthy of the Charter of Rights could appear to be the formation of a novel platform for interest group actions. Traditionally, these groups in Canada have focused their lobby campaigns at the cabinet plus senior echelons of system of government (Feldman, 2005). The policy practice in this country functions primarily via two comparatively firm structures: bureaucracy and party, both that attain a peak in the cabinet. The groups have focused their endeavors at this lone point of access in the policy practice. The espousal of Charter of Rights has transformed this condition through fashioning a novel access point in administrative procedure. The most greatly exposed interest group application of the Charter of Rights has been the Operation Dismantle case. In this case, the coalition of “peace” along with the anti-nuclear groups contested the trial of the United States (US) cruise missile on Canada’s terrain as a breach of the rights of life in addition to the security of individual safeguarded by section 7 of the Charter (Russell, 2007).
Conclusion
Charter of Rights has been fundamental force in promoting efforts towards policy issues in Canada for more than four decades. The Charter has been used to promote the policies that are geared to promote the interests of the Canadians through the different mechanisms. The judges has been in the forefront in ensuring that the provisions of the Charter are enforced and any form of violation is challenged in the Supreme and other lower courts in Canada. Through the Charter, the judges have been able to shed their pre-Charter approach of adherence along with self-control, plus are playing a powerful plus more dominant function in governing practice in policy issues. The Charter of Rights decisions have remolded the Canadian criminal law process through changing policy issues. Finally, the arguments in this paper support Dwight Newman analysis.
References
Anand, S. (2006). The Truth About Canadian Judicial Activism. Constitutional Forum constitutionnel. (15(2): 87-98.
Baar, C. (2006). “Court Systems in the Provinces,” in Christopher Dunn ed. Provinces: Canadian Provincial Politics. Second edition. Peterborough: Broadview Press.
Bateman, T. M.J., Janet L. H. & Russell, P.H. (2008). The Court and the Charter: Leading Cases. Toronto: Emond Montgomery Publications Limited.
Baum, L. (2006). Judges and Their Audiences: A Perspective on Judicial Behavior. Princeton: University of Princeton Press.
Billingsley, B. (2006). Oakes at 100: A Snapshot of the Supreme Court’s Application of the Oakes Test in Social Policy v. Criminal Policy Cases. Supreme Court Law Review. 35(2): 67-146.
Cameron, J. (2006). From the MVR to Chaoulli v. Quebec: The Road Not Taken and the Future of Section 7. Supreme Court Law Review. 34(2).23-57.
Epstein, L., Andrew. D. M., Kevin, M. Q. & Segal, J.A. (2007). Ideological Drift Among Supreme Court Justices: Who, When, and How Important. Northwestern University Law Review. 101(4): 1483-1541.
Feldman, S.M. (2005). The Rule of Law or the Rule of Politics? Harmonizing the Internal and External Views of Supreme Court Decision Making. Law & Social Inquiry. 30(1): 89- 135.
Hausegger, L., Matthew Hennigar, M. & Troy, R. (2009). Canadian Courts: Law, Politics, and Process. Toronto: Oxford University Press.
Macfarlane, E. (2009). Administration at the Supreme Court of Canada: Challenges and Change in the Charter Era. Canadian Public Administration. 52(1): 1-21.
MacIvor, H. (2006). Canadian Politics and Government in the Charter Era. Toronto: Thomson Nelson. Makin, K. (2007). It ‘Fundamentally Changed the Justice System. The Globe and Mail. [Accessed November 13, 2018].
Manfredi, C. (2007). The Day the Dialogue Died: A Comment on Sauvé v. Canada. Osgoode Hall Law Journal. 45(1). 332-339.
McIntyre, S & Sanda, R. (2006). Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms. Markham: LexisNexis Canada Inc.
Posner, R. A. (2008). How Judges Think. Cambridge: Harvard University Press.
Russell, P. H. (2007). The Notwithstanding Clause: the Charter’s Homage to Parliamentary Democracy. Policy Options. 28(2): 1-58.
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