Charter of Rights and Public Policies: A Debate between Courts and Parliament

Background and Context

The Charter of Rights has not only made our rights more robust by enhancing the role of the courts in the review of alleged rights violations by the state, it has also given judges greater powers to shape public policies. Should the courts or parliament (and provincial legislatures) have the final say in resolving conflicts between individual rights and public policies?Analytical Essay Requirements:The essay is worth 30% of your final grade, will be marked out of 30, and is due on Tuesday November 10th. The essay must be submitted to your TA as as an electronic file(pdf or MSWord)on CULearn(via the essay assignment submit tab) by 4:00pm on the due date(late essays will be deducted 1 mark out of 30 for each day it is delayed beyond thedue date).The essay should be  (fourto five pages, double spaced, regular font and margins). Please indicate your name and student number, your TA’s name, the name of your selected author and date on a separate page at the front of your essay (not included in page count)Please ensure the integrity of the electronic file of your essay (eg. that itis not corrupted), and retain a separate, correctly dated and secure backup copy of the file as submitted. Essays submitted irregularly will be assumed to be submitted at the time the essay can be first accessed on CULearn.(For questions/more informationabout electronic submissions see CULearn student support page Instructions for submitting an assignment in CULearnThe essay is your response to, and supporting analysis of, the question posed above, informed by readings in Looking at Lawchapter 3, pages 62-69 and Benjamin L. Berger, “Judicial Review,” (supplementary reading in CULearn). You may refer to other sources but such extra research is not required or necessary to excel with this essay. Your essay should include the following elements which will be graded in the completed marking template returned to you on CULearnonce your TA has completed marking all the essays:Explain how the Charter works: Refer to section 24 (standing)and section 1 (judicial review of alleged rights violations and determination of ‘reasonable limits’),and explain how this process haschanged the approach of ourcourts to rights violationsandhasled to more robust protection of rights. Explain the Notwithstanding clause: What recourse is available to governmentwhere it disagreeswith the court’s section 1 review of the appropriate balance betweenrights and public interests, eg.,if there is unwillingness by government to amend the lawstruck down by the court,or its appeals of the decision to higher courts are unsuccessful,in what circumstances can it resort to section 33?Briefly survey the constitutional debate: Whether the Charter improves Canada’s laws,or expands the influence of appointed judges over public policies in negative waysat the expense of democratically-elected legislators.Your Assessment/Answer: In your view, based on your analysis of above issues, who should have the final say, judges or legislators? Or, do you think this typically Canadian compromise strikes a good balance between parliamentary supremacy and effective rights protections throughour courts?