Review Questions: Chapter 06
Click on each question to check your answer.
1. What is the difference between rights and freedoms?
Brooks and Ménard say that rights are entitlements that are so essential to human dignity that they receive special protection under the law. The defense of rights often requires government action. Freedoms refer to an individual’s liberty to do or believe certain things without government interference. The defense of freedoms requires governments to refrain from acting. (pp. 185–187)
2. What is the constitutional principle of responsible government? How has it evolved over time?
The prime minister and cabinet are accountable to the House of Commons. In order to govern, they require the confidence of the House. If they lose it, Parliament is dissolved and an election is held. It has evolved in the sense that in our time, disciplined political parties and dominant prime ministers ensure that cabinets are seldom defeated. Nevertheless, executives remain accountable to the House and the elected representatives retain the ultimate sanction. (pp. 191–193)
3. What is the weakness of section 6 of the Charter, according to Brooks and Ménard?
Section 6—mobility rights—prohibits restrictions on the movement of people in Canada. However, the section permits provinces to impose reasonable residency requirements on citizens before they can be eligible for publicly provided social services. The section also allows provinces to establish affirmative action programs favouring a province’s residence if unemployment in the province is high. (p. 188)
4. Why was the Canadian Bill of Rights a disappointment for civil libertarians?
The Supreme Court justices were reluctant to use it in several cases. The justices determined that the Bill could not be used to strike down conflicting federal legislation and it did not take precedence over established rules of the common law. Since the Bill was only an ordinary act of Parliament, justices were reluctant to use it to strike down legislation. Also, the Bill only applied in the federal jurisdiction because it was not entrenched in the constitution. (pp. 212–216)
5. The Oakes test involves which two criteria?
The first criterion asks whether a government’s objective in limiting a right is sufficiently important to warrant such an encroachment. The second criterion is whether the extent of the limitation is proportional to the importance of the government’s objective. (pp. 218–219)
6. Why has the notwithstanding clause only been used on a handful of occasions?
It is not clear why it is rarely used. On one hand, it may be that governments do not want to be seen depriving citizens of certain rights. On the other hand, it is arguable that invoking section 33 may result in political benefits, as happened when the Bourassa government invoked the section after the Supreme Court decision in Ford v. Attorney General of Quebec. It may be that the political elites are in agreement that the integrity of the Charter should be maintained. (pp. 219–222)
7. How has constitutional supremacy replaced parliamentary supremacy in Canada?
Parliamentary supremacy means that Parliament’s authority is superior to that of all other institutions of government. Constitutional supremacy means that the constitution is supreme and that all laws made by Parliament and legislatures must conform to it. This concept is embedded in the Constitution Act, 1982. However, the constitution does not have total supremacy, as section 33 (the notwithstanding clause) of the Charter allows governments to enact laws even though the Supreme Court may have declared them in violation of section 2 or sections 7–15. (pp. 194–196)
8. Why has the issue of when and how far judges should involve themselves in the determination of public policy become increasingly prominent?
Justices have rendered decisions on a variety of public issues. Critics from both the left and right argue that justices have been over-willing to use the Charter to strike down government policies. Brooks and Ménard make the additional point that the Charter has high popularity throughout the country. Thus, when justices use the Charter to render a decision, public ire is directed at the justices, not at the Charter. It should be remembered, too, that Charter is meant to protect people’s rights, even if public opinion is against the upholding of those rights. Justices are obliged to protect rights, as set out in the Charter, not to follow public opinion. (pp. 222–223)
9. What were the main features of the Charlottetown Accord?
Distinct society provision; provinces able to opt out of shared-cost programs without penalty; Supreme Court justices nominated from lists provided by provinces; a Canada clause listing the fundamental characteristics of Canada; entrenchment of the Aboriginal right to self-government; elected Senate with equal representation from the provinces and special seats for Aboriginal representatives; francophone veto in the Senate regarding bill affecting the French language or culture; Quebec guaranteed at least 25 per cent of the seats of the House of Commons; confirmation of provinces’ exclusive jurisdiction over several areas and decentralization of immigration and labour force training. (pp. 206–207)
10. How is hate speech dealt with differently by the law and judicial interpretation in Canada and the United States?
In Canada, judges look at the content of speech, whereas US judges look at the probability that actual harm may result. In Canada, some speech is considered so nasty that, by its nature, it promotes hatred and is, therefore, undeserving of constitutional protection (see Keegstra decision). In the US, you may say something obviously false and odious about a group but it becomes unlawful only if it is liable to incite violence. (pp. 222–223)
11. How does a constitution embody national purpose?
Constitutions include statements that declare national objectives. They state what the society intends to be about. Brooks and Ménard refer to the constitution of China, which starts with a preamble that describes the country’s path to socialism. The Constitution Act, 1867 articulates nation-building goals for the people of Canada. (pp. 179–180)
12. What are the three forms that a constitution can take? Briefly explain each.
Written documents, such as the Constitution Act, 1982; decisions of the courts, called the common law; and unwritten conventions, which are practices and norms of behaviour, not legally binding or enforceable by the courts but considered by actors as expected behaviour. (pp. 175–176)