Chapter 7 Review Questions

1. The legislative forerunner to the Charter was the Bill of Rights. What were its limitations? Is the Bill of Rights still relevant legislation today? The Bill of Rights was a significant legislative precursor to the Canadian Charter of Rights and Freedoms. Enacted in 1960, the Bill of Rights aimed to protect fundamental rights and freedoms, including freedom of speech, freedom of religion, and the right to a fair trial. However, the Bill of Rights had limitations that led to the creation of the more comprehensive Charter of Rights and Freedoms in 1982. Limitations of the Bill of Rights: a. Limited Scope: The Bill of Rights only applied to federal laws and actions, leaving provincial laws and actions outside its purview. This meant that provincial governments were not bound to uphold the rights enshrined in the Bill of Rights. b. Lack of Enforceability: Unlike the Charter, the Bill of Rights lacked the "supreme law of the land" status. This meant that courts could not strike down laws that contradicted the Bill of Rights. While courts could indicate that a law was inconsistent with the Bill of Rights, they couldn't invalidate it. c. Absence of Remedies: The Bill of Rights did not provide clear remedies for individuals whose rights were violated. This limited its effectiveness in safeguarding rights. Relevance of the Bill of Rights today: While the Bill of Rights has been largely overshadowed by the Charter, some of its principles and concepts have influenced Canadian law and jurisprudence. Some provisions from the Bill of Rights, such as freedom of speech and freedom of religion, continue to be protected by the Charter. Moreover, the Bill of Rights played a crucial role in shaping the country's commitment to human rights and laying the foundation for the more robust protections provided by the Charter. 6. What is the significance of section 35 - Aboriginal Rights - being situated outside of the Charter provisions? Does this mean that government cannot infringe on Aboriginal rights? The placement of section 35 - Aboriginal Rights - outside of the Charter provisions holds significant legal and symbolic implications. This section recognizes and affirms the existing Aboriginal and treaty rights of Indigenous peoples in Canada. Its location outside the Charter reflects the distinct nature of these rights and the unique relationship between the Canadian government and Indigenous communities. Significance of Section 35: Recognition of Indigenous Rights : Section 35 explicitly acknowledges the rights that Indigenous peoples had prior to European contact. It recognizes their historical and ongoing presence on the land and their distinct cultural, social, and political identities. Protection from Infringement : While section 35 does not provide an absolute prohibition against government actions that might infringe on Aboriginal rights, it requires that any infringement be justified according to a strict legal test. This test includes considerations of the government's fiduciary duty towards Indigenous peoples and the goal of reconciliation. Governmental Responsibility : Section 35 reflects Canada's commitment to reconciliation and partnership with Indigenous communities. It highlights the government's duty to consult and,
where appropriate, accommodate Indigenous peoples when their rights are at stake, especially in cases involving land and resource development. Cultural and Legal Diversity : Placing Aboriginal rights outside the Charter acknowledges the diversity of legal systems and cultural practices among Indigenous communities. It respects their distinct legal orders and traditions. Reconciliation and Nation-to-Nation Relationship : The location of section 35 outside the Charter underscores the nation-to-nation relationship between the Canadian government and Indigenous nations. It emphasizes the need for collaborative approaches to address historical injustices and build a more equitable future. However, the placement of section 35 outside the Charter doesn't mean that the government cannot infringe on Aboriginal rights. It does mean that such infringements need to be justified according to a specific legal framework and principles of reconciliation. The government is still required to engage in meaningful consultation, accommodate Indigenous concerns, and uphold the spirit of partnership and respect for Indigenous rights.
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