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Charter Changes and Loopholes

Charter Changes and Loopholes

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Charter Changes and Loopholes

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  1. Charter Changes and Loopholes Ch. 10 (p. 330-331, 336-337)

  2. Charter Conflicts • Sometimes the Charter of Rights and Freedoms seems to contradict itself Ex. Hate Speech: freedom of expression vs. right to life, liberty, and safety

  3. Limiting Clause • There is a limiting clause in the Charter that says that rights and freedoms are not absolutely guaranteed • They may be limited if considered “justifiable in a free and democratic society” • Supreme Court of Canada decides what is “justifiable” • Gives judges a lot of power Too much power, according to some

  4. Notwithstanding Clause • The Notwithstanding Clause is a loophole the provinces insisted be put in the Charter before they agreed to sign it • Allows provincial governments to pass laws that violate freedoms and rights in the Charter • These laws last five years, but can be renewed • Examples: Quebec’s language laws; Alberta’s attempt to outlaw same-sex marriages • Fear of public backlash has limited the use of the clause

  5. Changing the Charter • The Charter and Canadian Constitution are not written in stone; they can be changed • Changes must follow the “amending formula” included in the Constitution • At least 7 provinces, representing at least 50% of Canada’s population, must agree on a change • 7 provinces + 50% population = Constitution change • Ex. Used in 1983 to strengthen Aboriginal rights in the Constitution