• Embed Doc
  • Copy Link
  • Readcast
  • Collections
  • CommentGo Back
Download
 
The Courts, ConstitutionalChange and Social Evolution
18/3/05Chris Haynes0029115
 
The Judicial Committee of the Privy Council (JCPC) for many years and in manydifferent rulings had a decentralising effect on the Canadian federation. Despite the quasifederal character of the British North America (BNA) Act on the surface, Canada hasgradually become one of the most decentralised federations in the world. A series of JCPC rulings, among other factors, are responsible for this outcome. This essay attemptsto answer the normative question, should the courts take a more literal interpretation of the constitution or should they take wider social, political and economic factors intoaccount? In other words, should the courts permit the political system to evolve with thetimes or should they uphold the timeless character of the constitution?To answer my questions, I will cite various arguments that address the advantages anddisadvantages of judicial review of legislation. Naturally, I will not address all arguments,nor even necessarily the most common, because there are simply too many. I will focus principally on judicial interpretation. The questions above are false dualisms. Mycontention is that the Canadian judiciary can both interpret the constitution literally andsafely permit the evolution of the political system into modern times. Thanks in part tothe Charter of Rights and Freedoms, the Constitution is strong enough to withstand thethreats of the tyranny of the majority because its very nature prevents the subjugation of any groups who have suffered in the past such as women, ethnic minorities or the provinces. The courts should stay true to the constitution and when contemporary political trends demand it, they should let interpretations of the Constitution and, if bothnecessary and widely consented to, the document itself, change.
 
“Constitutions govern the political process; the political process ought not to govern theconstitution.” (Westmacott, a79) So states Patrick Boyer in his essay “
WhoseConstitution Is It, Anyway?
” Boyer is underlining a recurring problem in Canadian politics. Canada’s very nature lends itself to various disagreements among its people. Andmany of these people feel that the answer is to change the constitution. So there aredebates. And there are conferences. And there are wins, and there are losses, and there arecountless stalemates.In the 1920s, provinces were campaigning more vociferously for provincial rights, andthe JCPC was there to help them. It is possible that they were acknowledging real pressures coming from the majority of Canadians and the JCPC’s help for the provincesmade necessary changes. In any case, the JCPC broadened the meaning of “property andcivil rights,” a provincial jurisdiction, in a number of rulings, assigning the provinces theresidual powers and thus responding to their grievances. (Livingston, 50-1) W. S.Livingston believes that this strengthening of the provinces at the expense of the federalgovernment had “an effect on the latter that bordered on disaster.” (82) But I disagree, because if it was really a reaction to a growing demand for provincial autonomy, the courtwas right to allow it. The interpretations must evolve with the time. Livingston alsodiscusses the 1920s as a time of trying to define the proper position in theCommonwealth of the self governing colonies, which set in motion a look at the lack of amending formula to the Canadian Constitution. (82) This judicial review was another of the JCPC’s reactions to sociological pressures that led to granting the Dominion the
of 00

Leave a Comment

You must be to leave a comment.
Submit
Characters: ...
You must be to leave a comment.
Submit
Characters: ...