This website uses cookies to ensure you have the best experience. Learn more

The Quasi Legislative Effect Of The Supreme Court Of Canada

2636 words - 11 pages

The Quasi-Legislative Effect of the Supreme Court of Canada

Daniele Zerbo
25 March 2014
The Charter of Rights and Freedoms, 1982 symbolized a new era for Canada. Championed by Pierre Elliot Trudeau, the charter entrenched the fundamental rights and freedoms of Canadian society, and allowed for those rights to be enforced by any individual should they be infringed upon. The enactment of the Charter of Rights and Freedoms illustrates yet another shift from traditional Westminster style of governance, and created a new political atmosphere. The notion of Parliamentary supremacy has shifted to accommodate constitutional supremacy, where two institutions must work together to balance the will of the elected and the language of the charter. Constitutions, the most basic of political institutions, have the power to affect politics, by defining the rules of the political sphere. Though Parliament remains supreme, the Charter of Rights and Freedoms has empowered the judiciary with the ability to interpret it broadly and settle major questions of public policy, something the Bill of Rights, 1960 could never really achieve. The charter has in effect, given the judiciary a quasi-legislative authority.
The Quasi-Legislator
This paper will argue that the Supreme Court of Canada has adopted a quasi-legislative approach in its decision making as a result of the Charter of Rights and Freedoms, 1982. Quasi-legislative is defined as having a partly legislative character by possession of the right to make rules and regulations, having the force of law (Merriam-Webster). In this paper, it is useful to define quasi-legislative as the court’s ability to influence policy, be it innocent or motivated, through charter enforcement and interpretation (McCormick, 2004).
Judicial Review in a post-Charter era
A strong judiciary is fundamental to functioning democratic societies. The quasi-legislative ability has always been, by convention, inherent in Canadian politics. But, the Charter enhanced this effect (Heard, 1991). Section 24(1) of the Charter states;
“anyone whose rights and freedoms, [as guaranteed by this Charter], have been infringed or denied may apply to a court of a competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances” (Canadian Charter of Rights and Freedoms, 1982).
This provision gave the judiciary the role of “supreme arbiter”. (Kelly, 2005). Also, it explicitly authorized judicial review in a way that until 1982 was not expressly detailed. The provision also justifies the philosophy that the constitution is “a living tree” which must grow and adapt to a changing society (Morton, 1995). Judges now were able to justify their quasi-legislative decisions, moving away from neutral, technical interpreters of the printed law. Judges find ways to interpret printed law in a manner that favours a particular outcome, usually of great public importance. This quasi-legislative...

Find Another Essay On The Quasi-Legislative Effect of the Supreme Court of Canada

Bias of the canadan supreme court

916 words - 4 pages Supreme Court AppointmentsSince most papers are owned by one company in Canada, I made sure I had an independent voice. "The Western Standard" and "Toronto Star" articles are very polar in their approach on the subject of the recent court appointments.The Star reports on the committee in parliament. The Western focuses on the subject of the judicial review committee. Both articles show the Conservative Party opinion that the appointment of

Legislative Success: The Legislative Point of View

791 words - 4 pages In general for any level of government, a private agency or even within one group, gaining support starts with interest, need, demand, and potential success. Legislative changes will go nowhere without one or more of these concepts. Nor should it- whats the point? Legislative success among the president deals greatly with legislative advocacy. Legislation is generally successful when a large majority of those to be affected will benefit from

The Voting Rights Act of 1965 and the Supreme Court

765 words - 4 pages Court Invalidates..”) The Supreme Court decision was that the Voting Rights Act of 1965 is no longer relevant since states do not judge based on voting discrimination since the Civil right Era. Chief Justice John G. Roberts Jr. stated, “our country has changed” in a 5-4 court ruling. As the Supreme Court finds that the Congress has exceeds itself under the 15th amendment, which guarantees that voting rights cannot be denied based on race. As of

The Implications of Quasi-Democracy in China

933 words - 4 pages Muhlberger notes that the definition of democracy has historically been restricted to nations that are adhere to the Western conception of democracy (25). Yet, Muhlberger claims that even within authoritarian regimes, there are components of democracy at the grassroots level. He defines “quasi-democratic” as “any group willing to submit to decisions arrived at by discussion and voting (formal or informal) or abides judgment of elected

The Nomination Of William Rehnquist To The Supreme Court And The Power Of A Supreme Court Chief Justice

1102 words - 4 pages Established in Article III of the United States constitution, The U.S. Supreme Court is the only federal branch that is comprised of non-elected members. Justices are appointed by the President with the advice and consent of Congress. The court adjudicates cases that arise through U.S. Constitutional issues (as opposed to state issues), U.S. laws and treaties, interstate cases and cases where a state itself or the U.S. is a party in the case

A Brief History of the US Supreme Court

1044 words - 5 pages John Jay took his vows on October 19, 1789. John Rutledge took both pledges in open court on August 12, 1795. Oliver Ellsworth took both vows in open court at the sitting of the Supreme Court of the United States on March 8, 1796. John Marshall took his promises on February 4, 1801. Roger B. Taney took both promises of office on March 28, 1836. Salmon P. Pursue took both vows on December 15, 1864. Morrison R. Waite took both promises on

The Supreme Court standard of obscenity evolution since 1950

1524 words - 7 pages has been an evolution of the whole idea over the years since the inception and the legalities behind it. The issue of obscenity was mostly associated with movies and visual productions that produced materials that were accessible to the public. The United States Supreme Court was at the forefront in handling the matter through the Supreme Court (Boyer, 2006, p.167). Free speech for movies was first heralded in 1952 where the motion pictures were

U.S. Supreme Court and the Impact of Sentencing

1753 words - 7 pages . The judge made him sign a pledge, pay $3.76, be industrious, and become a sober man. Since this time there have been many conditions set on this type of agreement with the court. This type of penance, and proof of good behavior, kept a convict from jail or prison and is now called probation. Due to the many variations of sentenced conditions, there were court cases which where brought up to and addressed by the many State Supreme Courts. Many

The Supreme Court case of Reno v. ACLU

549 words - 2 pages The Supreme Court case of Reno vs. ACLU was a pivotal case in American History. It took place in 1996, and was the Supreme Court's first case dealing with the issue of cyberspace. The case involves the Communications Decency Act (the CDA), which makes it against the law for minors to view "obscene or indecent" messages or images on the Internet.1 When the president signed the bill, the American Civil Liberties Union (the ACLU) filed a suit

The Supreme Court Case of Roe vs. Wade

1819 words - 7 pages The Supreme Court Case of Roe vs. Wade In 1973 the United States Supreme Court decided the case of Roe V. Wade. Jane Roe was a single mother trying to raise one child on a limited income. She was living in Dallas Texas when she became pregnant with another child. There were no medical issues that would have prevented her from carrying this child to full term. The lack of income and already having a child was her deciding factor. In

The Supreme Court

1067 words - 4 pages In 1787 Article three of the constitution created the Supreme Court, but not until 1789 was it configured. The way it was originally set up was with one Chief Justice and five associate judges, with all six members being appointed for life. This court serves as the “supreme law of the land”, it has the power to determine if state or federal laws are in conflict with how the Court interprets the constitution.      Presently the supreme

Similar Essays

R.V.Feeney Supreme Court Of Canada Hearing

3019 words - 12 pages of society outweigh the individual right to privacy. First, in this paper we will discuss important section numbers relating to the Feeney case which includes section 8, 10 (b), and section 24 (b). Than we will examine the ruling from the Supreme Court of Canada regarding the Feeney case and how this case has impacted police in their work and assuring individuals their right to privacy. After we will look at two other cases precedent to the

Judicial Process Of The Supreme Court

1167 words - 5 pages Court to exercise its power by shifting its system under the Constitutional laws of the United States. Throughout the Supreme Court, many cases have been rejected and are deposed of, but the Supreme Court approves only certain cases. Thus, the Supreme Court reconciles the issue of that specific case, which is then obtained and written by the Chief Justice of the Court as the final conclusion. Cases that are controversial result in great effect in the

The Supreme Court Opinions Of Clarence Thomas

1805 words - 7 pages injection after the Supreme Court rejected a last-minute stay (Connor). Justice Thomas history of silence is unique and with the help of Toobin’s book it is possible to understand exactly how these instances and strict conservative perspectives have had an effect on the running of the Supreme Court in a time where many support more liberal and progressive views of the law. In the book, Justice Thomas is described as having “embraced and alternative model

Important Cases Of The Us Supreme Court

731 words - 3 pages Important Cases of the US Supreme Court The United States Supreme Court has interpreted the constitutional guarantees contained in amendments to the constitution. Among these Guaranteed rights are the freedoms of religion, speech, and press, along with the right of protection against illegal search and seizure, equal protection under the law, and the right to counsel. These rights all contained in the first amendment to the constitution are