For a long time, since the dawn of civilization, man has believed in the rule of law. Every independent nation across the word has some set of principles established with an objective of governing the people and controlling their activities on land. This set of rules are listed, outlined, highlighted and protected by the Constitution. A constitution, therefore, can be defined as a body or an assembly of the fundamental principles governing the behavior and operation of a given group of people, state or a county. These laws may be written or unwritten but remain to be supreme above any other policies on land. This paper, therefore, objects on the Canadian constitution about the cases and evolution in the court's jurisprudence. It does this focusing on the fundamental freedoms and democratic rights of the people. In addition to this, it critiques the court's performance in interpretation and application of the charter. Besides defining concepts earlier on, it sums up the argument by taking a stand concerning whether the charter has made some significant changes through time.
Canadian constitution and definition of terms
Canadian Constitution is the supreme law that reaffirms its dual legal system including aboriginal and treaty rights of Canada as a state. It includes the constitutional acts of 1867 and 1982. Being a supreme law implies that it is the point of reference that clarifies all the legal actions or directives concerning law on land. Similarly, human rights refer to the standards inherent in all individuals regardless of their nationality, gender, sex, the area of residence, nationality, race, ethnic origin or the religion. This right is universal and in most cases expressed through treaties and customary laws. Freedom refers to the rights or ability of people to make their actions without any forceful act in a community that supports full human development. Under the constitution, the Charter of rights and freedom is regarded as the bill of right within the Canadian constitution forming part of the constitution act 1982. It authorizes certain specific political and civil rights to Canadians, despite the status and level of individuals. Jurisprudence refers to the art and science of knowledge acquisition and the theory of law. It includes the driving force or principles that pillar the law making it accepted and applicable.
Courts performance in interpreting the Law
In Canada, evolution about the courts' jurisprudence has occurred in some ways. These are the landmark cases and the decisions that were made by the judges during that time. In every country, the court of appeal is usually the final resort and therefore the fate of any victim purely depends on the ability of the judges to interpret the law. Right interpretation results to right application of the rule of law, but in the case of the contrary, the opposite is likely to occur.
The first landmark cases were Edward versus Canada (Attorney General), 1930. Under this case, the Privy Council amended a rule that women had a similar capacity of being appointed to the Senate. In spite of this, the Privy Council in Edwards did not acknowledge nor embrace the right of women. The fact that ruling was for women, it marked the beginning of a different face in the judicial system. Considering the charter of human rights and freedom chapters 3 and 4, it dwells on the fundamental freedom and democratic rights of both sexes. Under the constitution, they are both legally protected and therefore the court's decision was for the good of the state and on the supreme law of the country. With this respect, it is more than clear that the interpretation of the law by the judges and lawyers of the court was very right. The charter, therefore, is very significant in protecting the interest and the fundamental rights and freedom of the people in ensuring equity by reducing some common injustices.
In the year 1985, a different decision was made concerning the Lords day Act" and "the Canadian Charter of Rights and Freedoms. In this case, the respondent was Big M. Mart Ltd and the appellant was her Majesty the Queen. Based on the constitution, the Lords day was defined as that period between the Saturday midnight and Sunday midnight. In between this duration, no trading or any other commercial activity was to take place. It happened that respondent was engaged in a trading activity and therefore the need for prosecution. In his argument, the respondent claimed that the day of the Lord was against the charter of freedom and human rights. Right and freedom of religion is only compulsory to Christians and not any other person belonging to a different denomination. In a greater extent, his rights were being infringed.
In making a decision, the judges never followed the constitution but instead used a different approach quoting the law from Saxon Dooms, a law which was promulgated in England during the Anglo-Saxon by the king of Wessex 688-725. In the application of this, the approach changed. The interpretation of the constitution based on the offense was the day of the Lord act but in support of the charter of rights and freedoms.
Logically, the interpretation was for humanity which is to be protected by law. The application and implementation of the law should not be rigid but flexible. Not everyone goes to church at the same time people have different religions that operate on different days. The decision made had an impact to the prejudices of the country calling for some adjustments in various sections of the constitution.
The third landmark case concerned the freedom of expression, according to the Canadian Constitution, freedom of commercial advertisement by companies and corporations were available with restrictions to the age of 13. This was captured under the "provincial consumer protection act." The Irwin Toy Ltd decided to forward the issue to court with several other parties and organizations intervening. Despite the attempt, the court made a decision in support of prohibition. From their perspective, the court argued that even if it is against the children's rights, they are not in a position to make an informed decision concerning the right choice of good to buy. They proceeded by justifying their claim holding that commercial companies are of the idea of taking advantage of the children to invite their parents or themselves to make purchases. The question is, has justice been observed? What is the right thing to be done?
Based on the ruling from the Supreme Court, it is against the fundamental freedom and democratic rights of individuals. It is the right of the children to access information concerning properties that are meant to them. In this particular ruling, there was poor interpretation and application of the law. The court was supposed to view the case in a different angle that was going to favor both parties. In support of the children and protecting their interest, adjustments were to be made just to ensure that the products are meant for the right age.
The fourth landmark case in the history of Canadian court jurisprudence and charter law concerns criminal cases. It tends to soften the encounter between the criminals and the police. These case had an impact as it even shaped the entire trial process. A good example of this case was the one indexed R.V Feeney in 1977. The decision made by the court concerning this case resulted in changing legislation and the amendment of a different section 529.1 of the Canadian criminal court. The ruling of the police was on view that before police make any illegal arrest on private property, they must comply with the charter of rights and freedom. This implies that before an arrest is made, a procedure such as the acquisition of warranty of arrest is necessary. The decision made by the court concerning this case was very right as that is the way to show concern for humanity. To some extent again, it can be viewed to be too soft to the extent that people may take advantage. The jurisprudence of the law is not mistaken, but adjustments need to be made. In addition to this, there are some criminal offenses that need quick intervention as procedures at the time may not be of great significance.
The fifth Landmark case concerned a criminal offense. This case indexed R.V Cuerrier (1998) concerned Henry Gerard Cuerrier as the respondent. The accusations concerned sexual assault whereby the accused never disclosed his HIV- status to the two women he happened to engage with in sexual intercourse. The charges were under the criminal offense. At the courtroom, based on the information given from the nurse, the accused had been ordered to use protection during the sexual intercourse which he never used. In addition to this, the two women confirmed that they were not aware and in case it would have been so, none of them would have engaged in sex. After listening to the accusations, the court judges inquired from the two women if any of them is testing positive. Scientifically, after a sexual intercourse, it takes time for the virus to reflect in the body. The fact that the answer was wrong made the judge acquit the accused.
While giving the case a critical point of view about the judgment, a lot remains unanswered. Even after the appeal, the case was dismissed, no impact created. The primary reason is that the nurse was present at the courtroom and obviously this was the right person to give directives concerning the infection which was later to be used by the judge to make an order. The necessary never happened. The idea here is that the court did not give an exclusive interpretation of the law and at the same time made wrong application of the policy.
About the fundamental freedoms and democratic rights of the Canadian people, justice was to be employed. The accused was supposed to be prosecuted based on his actions. Whatever happened proved to be intentional based on the claims presented by the nurse. For this reason, only, the prosecution was advisable. This case is regarded as one of the landmarks because it reveals some of the wrong decisions made by the judges ending up determining the fate of the two women.
The impacts of the charter
The current position and achievements of Canada are attributed to many cases that have caused advancements in the constitution and adjustments to the rule of law. Apart from the previous five illustrated cases, others may be as follows. The sixth case indexed Calder et.al V.B.C. Attorney General (1973). This case brought about a split between the judges in the Supreme Court. The argument was about whether the first nation people were to be allowed to own land. Based on the constitution, all the Canadians are protected by law having been given the right to own property. It was for the interest of the aborigines especially the first nation people also to be allowed to enjoy such rights. Frank Arthur Calder who was the first Aborigine to be elected to the legislature took the B.C government to court claiming a piece of land of about 2600 km sq. The court listened to the claims which were followed by divide rules from each of the judges in the court. Ultimately, the case was ruled in favor of the state. The significance of this case was the fact that it laid the basis for the Nisga'a treaty in 2000. It was through this claim that the B.C government acknowledged that the aborigines had claim over the land even before colonization.
From the above case and decision made, it is very open that there was poor law interpretation and wrong application involved. In a panel of around seven judges, decision ends up being divide without clear and valid argument. This soundly implied the fact that the fate of individuals entirely lied on the interpretation of the judge. At ti...
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