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4130 Final Questions Challenging The Charter Law Coursework (Coursework Sample)


Please answer ALL of the questions using the two cases (hyperlinks provided) in the attached document. Any questions please don't hesitate to contact me. Thank you!


Case 1


Subsequent/ ’Second Look’ Case 2



Please read the above cases and answer the questions below. 


Close reading


1) Identify and briefly describe the competing social objectives and individual rights that the Supreme Court was asked to review in Charkaoui v. Canada (Citizenship and Immigration). (2 marks)


2) Of the sited common law cases which two, in your estimation, where the most instructive for the SCC in reaching its decision in Charkaoui v. Canada (Citizenship and Immigration) and why? (5 marks)   


3) Can this case be characterized as a ‘hard case’? (i.e. so novel/new that the SCC had to rely on ‘principles’ drawn from the common law to make its decision) or did the common law specific to Section 7, 10 & 12 make the court’s job easier? Explain your position. (5 marks marks)


3) In your own words, how was the Oakes test applied in this case? (5 marks)



Critical Analysis


4) According to Kent Roach, ‘the way the Court discusses possible ‘less drastic alternatives’ can shape the eventual legislative reply and for this reason it is important for the Court to be careful about what signals and hints it send to policy makers.’  Did the SCC, in your estimation, overreach its own adjudicative capacities by engaging in ‘legislative research’ in Charkaoui or did it act appropriately; in a way that we would expect from a modern supreme court (i.e. a court that must make decisions and suggestions based on extrinsic evidence?) Explain your response. (10)






5) “In the last few years, the SCC has effectively taken Senate reform off the federal agenda for the foreseeable future, torpedoing both the governing Conservatives’ reform program and the Opposition policy to abolish the Senate. The Court has struck down much of Canada’s prostitution legislation, resulting in a dramatic rewriting of the law by the current government. It has changed the landscape in parts of Canada for Aboriginal rights, affected tools available for fighting crime and terrorism, and cast into question how future appointments to the Court from Quebec will be managed. During this period, numerous commentators have characterized the decisions of the Court as reflecting a string of “losses” for then Prime Minister Stephen Harper’s government. Some have gone so far as to say that Canada has entered a “legal cold war” and that these “legal conflicts reveal a clash of beliefs about how Canada should work.”

Pick one of the questions below (DO NOT ANSWER BOTH)

a) Is it appropriate/accurate to characterize Charkaoui as a loss for the Federal Government? If so, can the decision in Canada (Citizenship and Immigration) v. Harkat, 2014 be best described as a win for the Feds? If the win/loss characterization fails to capture the nature of these decisions (and the relationship between the government and the SCC,) how would you describe them? (10 marks) OR

b) Does the legislative reply to Charkaoui and the subsequent decision in Harkat represent a model of dialogue (as described by Roach?) If so, in your estimation, did the dialogue produce ‘good law?’ If not ‘a dialogue,’ how would you best describe the relationship between the federal government and the SCC in these decisions? How would you evaluate the ‘final’ outcome in Harkat?  (10 marks)   



Bonus Question (optional)


Have the questions regarding the constitutionality of Security Certificates in Canada been adequately addressed/resolved? Explain. Or do you anticipate more ‘Charter trouble’ for the IRPA?  (2 Bonus Marks)








Challenging the Charter
Institutional Affiliation
Challenging the Charter
Question One
The court case of Charkaoui vs. Canada mainly highlighted the problems concerning the security certificates that are issued on a person, and Charkaoui challenged disclosure on new evidence that was out to justify his detention as per the jurisdictions of the court. The other competing social objectives were he raised issues on alleged destruction of the evidence offered fully by the Intelligence service of Canada. When presiding the evidence to the judges, they found out the evidence was not meeting the requirements of section seven of the Charter (Duffy & Provosi, 2008).
The individual rights reviewed by the judges include the constitutional laws of section seven of the lawful Act (Qweri, n.d). Other sections included section ten, "the guarantee of prompt review," and section twelve, "the prohibition on cruel and unusual treatment" (Duffy and Provost, 2008). Therefore, section seven limits the detainee information about their court case, and they only get to know bits of the information during court trials, which were presided to be unfair to detainees.
Question Two

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