The Instability Associated with Shifting Away from the Intended Weak-Form Judicial Review of the CharterThe use of non-constitutional reversal is not understood by Mark Tushnet to be within the rights of parliament. The evidence in R. v. Seaboyer (1991) is in regards to the rape-shield provisions in the Constitution. The majority judgment (7-2) concerned that Parliament had struck an improper balance between the rights of the accused and victims rights by the exclusion of relevant sexual history under section 276. Justice McLachlin offered an understanding for guidelines expected out of the legislative rebuttal: “[the guidelines] should be seen for what they are – an attempt to describe the consequences of the application of the general rules of evidence governing relevance and the reception of evidence – and not judicial legislation cast in stone” (Seaboyer, 71). The following year, Bill C-49 was enacted and disagreed strongly with the majority decision as it was strongly pronounced in the preamble. The legislative preamble strikes unequivocally at the interpretation of the Supreme Court of Canada by suggesting that they had not struck the right balance between the victim and the accused. This demonstrates the commitment of the Court to the principle of dialogue theory, but cannot afford to contradict the position of the Minster of Justice because the legitimacy of the Court itself resides in the Cabinets continued reliance on it for limitations. However, the balance was suppose to be maintained and not shifted to the office of the Minster of Justice for the legitimacy of the Court, the Charter was supposed to be the objective legitimacy of the Court, which would then give stability to Parliament. The shift from a stable balance in weak-form judicial review where the Court manages the limitations of the legislators to a system whereby the legitimacy of the Courts ruling is dependent on the political compliance of the legislators. The shift changes the balance of power initially entrenched in the Charter, therefore, without Charter compliance the foundations of the system is affected more severely by political winds, thus increasing instability.
The importance placed on the decisions of the Supreme Court of Canada has become paramount after the entrenchment of the Canadian Charter of Rights and Freedoms in 1982. The idea of using the Charter to centralize rights-based review through a singular federal body would produce greater national unity and minimize provincial involvement in the process of balancing minority groups interests. Following the act of unilateral patriation, the Charter returned to the idea, from the proposal formulated at the First Ministers Conference, to something more substantial that resembled more the peoples package that was promised. The social groups that formulated into special interests groups lobbied the Special Joint Committee, which generated popular support for the proposal; not through the inclusion of their demands, but by the transparency and ideology demonstrated
The Charter of Rights and Freedoms was a federal and territorial document of the British imperial government since 1887. It states:
The first and most fundamental expression of the fundamental rights of men and women in a united, harmonious, and sovereign nation is the right to life and liberty; to secure and protect life and property; to support the development of their social and economic lives; to establish peace over their lands and property, and to promote the welfare of all, for they will serve, contribute and assist each other in all its aspects and in their mutual contributions; and, finally, to advance peace and the common good.
Since World War I, Canada has consistently maintained its position on this fundamental issue:
For nearly two million years, the Charter of Rights and Freedoms has been the only document of democratic and democratic fundamentalism that has been a standard of international constitutional government. It embodies the core principles of the U.S. Constitution and Constitution Law, which are recognized not just in England but, as the great jurists of all ages, in the United States. It was intended to promote international law in our constitutional system, free from any interference in the law or personal or political control, or in any matter affecting the personal or political life of mankind or other civil persons. The Charter of Rights and Freedoms is therefore an instrument of that spirit of international constitutional law, and can only be said to recognize the universal right of all those who represent the interests and interests of all humankind to pursue a just, harmonious, and common welfare under the principles of the U.S. Government that the United States as the major international power, and it is an instrumentality of that spirit that will only be able to ensure that the rights enjoyed by all of our peoples in this great constitutional system are upheld by the Court.
In other words, Canada has lost most of its fundamental values, values that were so fundamental it now no longer has a meaningful international reach. It has become increasingly difficult to distinguish the human, civil, or humanitarian rights and freedoms of everyone from all three. The Charter of Rights and Freedoms will eventually replace that constitutional mandate.
In the meantime, the political and legal consequences in Canada and the world come with many more considerations to pay attention to. The first is that the Canada-United States Constitution Act of 1993 could well pass as a legal anomaly, that Canada would still have an international obligation to protect and defend our people, our borders, and the rights, freedoms and obligations of those who live under the Charter. After all, we are Canadians, and our political system is still governed in the spirit of British and Dutch governments, which have consistently insisted that all citizens have the liberty to live as they please.
The second consideration is that at present, the United States does not have universal principles of democratic fundamentalism. It is the people of Canada that is being forced to negotiate about an amendment to the Constitution of Canada. That amendment (Article 2 of the Constitution) would likely be the only one that has yet received sufficient international status or political support, which would cause great distress for Canada.
So far Canada is just waiting patiently for the Supreme Court to deliver on that promise.
The first part of the article outlines a number of issues that must be considered. It sets out the basic principles contained in the Charter, establishes the principles of sovereignty and territorial integrity governing the United States of America, protects the right of persons and property to bear arms, and has made the Charter the law. It also contains the obligations and obligations