3 Background:Right: a legal, moral, or social entitlement that citizens can expect, mainly from the governmentFreedom: the right to conduct one’s affairs without governmental interference.
4 History Pre-Charter, Canada had a Bill of Rights Enacted in 1960 by John DiefenbakerRecognized:A) the rights of individuals to life, liberty, personal security, and enjoyment of propertyB) freedom of religion, speech, assembly and associationC) freedom of the pressD) the right to counsel and the right to a fair hearing
6 What was wrong with it?1. Federal Statute – only applied to federal jurisdiction2. Statue – does not take precedence over any other statute. Up to Judge to decide3. Statute – could be amended by a majority vote in the House of Commons
8 Why the Charter? Entrenched in the Constitution: 1. Applies to provincial and federal jurisdiction2. Constitutional law so overrides all other law3. Can only be amended through the constitutional amending formula
9 S. 33 Notwithstanding Clause Provinces would not patriate constitution without this.Limited right for governments to pass laws that are exempt from s. 2 (fundamental freedoms) and ss (legal and equality rights) of the CharterCan only remain in effect for up to 5 years – then must make a renewed declaration
10 Examples: Ford v. Attorney General of Quebec  SCC rules that Quebec’s Bill 101 which required all public signs to be in French only, was invalid because it infringed s. 2 (b) freedom of expression.Quebec invoked the notwithstanding clause for the French only law to stand.
12 Less Successful Attempt: Turn to page 82 in text: Law in the Extreme
13 Debate:Many rights advocates argue that the most important Charter provisions are those affected by the notwithstanding clause.Elected officials are more concerned with winning votesSupporters argue that it puts final power where it belongs – with our elected officials.If we don’t like their decisions we can vote them out.What do you think?
14 Jurisdiction The government must be involved for the Charter to apply Government: all branches (federal and provincial), Crown corporations, federally incorporated companies, banks and other organizations regulated by the federal government.
15 Does the Charter Apply?You notice an “Apartment for Rent” sign and you apply. The superintendant looks at you, slams the door in your face and mumbles “I don’t rent to people like you.”
16 NO!The government is not involved in any capacity. You will have to go through human rights legislation in Chapter 5.
17 EnforcementSupreme Court of Canada has been called the Guardians of the ConstitutionCharter is written in general language and the 9 justices are responsible for interpreting and enforcing its terms.If your rights have been infringed you cannot go to the police – you must fight in court!
20 Does your case have merit? 1. Was the right infringed or violated by government or its agencies?2. Is the right in question covered by the Charter?3. Is the violation or infringement within a reasonable limit?
21 s. 1 Reasonable LimitsS. 1 guarantees our rights and freedoms while at the same time, making it clear that they are not absolute – they are subject to reasonable limits.If a government wishes to pass a law that limits a Charter right, it must show that it can be justified in a free and democratic society.
22 Law and DisorderLet’s look at a video to see if this makes sense.
23 Oakes Test 1. Reasonably important objective 2. Logically connected 3. Limited as little as possible4. More severe the rights limitation, the more important the objective must be.
24 SCC Remedies 1. Strike down the legislation 2. Require that a certain section be rewritten or removed.3. Read-in to the legislation*** Will give governments a certain period of time to get this done.
26 s. 2(a) Freedom of Conscience & Religion Right to entertain the religious beliefs you choose, to declare the beliefs openly without fear, and to express your beliefs through practice, worship and teaching.
27 Examples: R v. Big M Drug Mart  -tested the Lord’s Day act prohibiting the sale of goods on Sunday’s-struck down under s. 2(a) because it compelled the observance of Sunday as a day of rest.-courts have also upheld employee’s rights to be accommodated in their practice of their religion e.g. permitting days off for observance of religious holidays.
28 LimitsParents are free to engage in religious practices but these activities may be curtailed when they interfere with the best interests of the child.Turn to page 87 in your text: Calgary teen to appeal transfusion ruling.
29 s. 2(b) Freedom of Thought & Expression -freedom to think and believe what you want and to publicly express your opinions through writing, speech, painting, photography and other means.-freedom of the press is includedLet’s watch a video (It’s a Free Country) to make this clearer.
30 s. 2c Freedom of Peaceful Assembly & Association -must be peaceful or lawful such as an orderly demonstration-to be classified as an unlawful assembly or riot it must consist of 12 or more-an assembly can be dispersed if it disturbs the peace or causes fear in persons nearby.
32 Association:Ability to connect with other people or groups such as unions, political parties, cultural groups, educational organizations or sporting clubs.Limits: probation orders, prison etc.
33 s. 3 Democratic Rights Every citizen has the right to vote Limits: age, mental capacity, residence, registrationJudges are restrictedShould inmates be allowed to vote? Turn to p. 91 of text.
34 S. 6 Mobility RightsMove in and out of the country and between provincesLimits: extradition, provincial programs that favour permanent residents
35 s. 7 Life, Liberty & Security of the Person -most difficult provisionLife: a fetus is not a personRodriguez v. B.C. Sue suffered from ALS, a debilitating, terminal disease that attacks the central nervous system. Wanted to be able to kill herself but was not physically capable. Lost her battle when SCC in a 5-4 decision said that assisted suicide should not be legalized because the life provision is to protect vulnerable persons
36 Liberty: often associated with criminal cases Liberty: often associated with criminal cases. A person cannot be deprived of this right except in accordance with fundamental justice. Refers to proper criminal procedure.
37 Security of the person: R v Security of the person: R v. Morgentaler  the SCC ruled that the provisions of the Criminal Code relating to abortion violated a woman’s right to security of the person.Let’s watch a video (What about my rights?) to make this clearer.
38 s. 8 Unreasonable Search and Seizure The police must have a good reason for searching the person, home or belongings of an accusedMust be done fairly e.g. no fishing expeditions
39 R v. ParkerLets look at a case to make this clearer p. 95 of text
40 S. 9 Arbitrary Detention or Imprisonment Cannot be held for questioning, arrested, or kept in jail by the police without good reason.So are police roadside checks for driver’s sobriety illegal?
41 No!R v. Ladouceur Pulled over at a random stop, police discovered his license was suspended. ConvictedAppealed to O.C.A. and S.C.C. dismissedJustified under s. 1
42 S. 10 Rights while under arrest or detention 1. be promptly and clearly informed of the reason for arrest or detention2. be informed that they may obtain the assistance of a lawyer3. Must stop questioning until accused has seen lawyer
43 s. 11 Rights when charged with a criminal offence Trial must take place within a reasonable timeAccused cannot be forced to testifyLet’s look at R v. Askov p. 97
44 s. 12 Cruel and unusual punishment 1. the gravity of the offence2. the personal characteristics of the offender3. the particular circumstances of the caseE.g. possession of 1 marijuana cigarette – minimum sentence in 1970 was 7 yearsRobert Latimer sentencing was a big challenge
45 s. 13 Rights of witnesses in court Witnesses cannot have their testimony used against themE.g. eye witness in a hit and run was at the scene because he was involved in a drug deal
46 s. 15 Equality Rights1. The complainant must show that he or she has been treated unequally and that the effect of the unequal treatment was discriminatory2. The government must then try to demonstrate that the law is “demonstrably justified” under s. 1 of the Charter as a reasonable limitE.g. although “every individual is equal”, a 9 year old cannot legally drive a car
47 Language RightsAble to communicate and receive services from the federal government in both languagesAble to be educated in both languagesLanguages = English & French
48 Aboriginal RightsDoesn’t confer new rights but rather protects the rights of Aboriginal peoples from the Charter provisions
49 Results“Guilty thugs are walking free because of the Charter and nit-picking judges who let them go on technicalities” – Justice Sterling Lyon of the M.C.A.
50 Response: “There is no evidence that the judges of the Supreme Court have used the Charter to increase their own power at the expense of Parliament and the elected legislatures”What do you think?
51 FactSince 1982 the SCC has overturned some 80 laws passed by democratic parliamentsMany other proposed laws have not been enacted because legislators know they would not survive a Charter challenge.
52 One Last VideoWhat about if the government is not in play? Let’s look at a video (To be equal or not to be) that deals with the Charter and human rights legislation