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The Canadian Charter of Rights and Freedoms

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1 The Canadian Charter of Rights and Freedoms

2 Recall… Charter is entrenched in the Constitution
Included as part of the patriation process in 1982 As a constitutional document, the Charter takes precedence over all legislation Over the last 30 years, it has been somewhat common for legislation struck down because it contravenes the Charter

3 Fundamental Freedoms The Charter guarantees four fundamental freedoms
Religion Expression Peaceful Assembly Association These rights apply to everyone

4 Other rights protected under Charter
Some rights don’t apply to everyone (for example only to citizens) Democratic rights Mobility rights Legal rights Equality rights Language rights Aboriginal and multicultural heritage rights

5 Democratic Rights What does it mean to be a citizen?
Origins date back to the Roman Empire that consisted of 80 million people, but only 6 million enjoyed the privilege status of Roman citizenship (right to vote in assembly) In Canada, the Citizenship Act states that citizens are those persons who were born in Canada or born outside of Canada to a Canadian Citizen, or who have been granted citizenship under the Act and have taken the oath of citizenship p. 164 Emily Murphy – Heritage Moment

6 Mobility Rights – Canadian Citizen
The right to enter, remain in, or leave the country are fundamental rights of a free democratic and are guaranteed as are the rights to move freely, take up residence and work within a country Law Society of Upper Canada v. Skapinker

7 Legal Rights – Section 7 John Lock’s classical conception of fundamental human rights defined as life, liberty, and property are clearly reflected in s.7 of the Charter However not exact in nature with regards to Lock’s idea of property and s.7 because Property is not guaranteed, but the right to the security of person is and; Therefore, the early drafting stages of the charter omitted property rights The rights under s. 7 are not absolute and; Can be removed by the state so long as their removal is in accordance with the “principles of fundamental justice”

8 Fundamental Justice – For the courts, has been a matter of determining what has been and continues to be fair and right in Canadian society Represents a belief in the dignity and the worth of the person and the rule of law Two stage process under s.7 for constitutional analysis – Whether a law violates the principles of fundamental justice is considered only after the court has determined that an infringement of the rights to life, liberty, or security of the person has occurred

9 Likewise, courts may rule a law constitutionally valid despite its denial of life, liberty, or security of person, so long as the deprivation of these rights in in accordance with the principles of “fundamental justice”

10 Defining Cases in Canada
R. v. Morgentaler – SCC 1988 Appeal allowed: Section 251 (now section 287) of the Criminal Code was an interference by the state with “bodily integrity” that violated a women’s liberty, security of the person and the right to fundamental justice under section 7 of the Charter p Rodriguez v. British Columbia (Attorney General) 1993 p. 187 – Held infringement of section 241 of the Criminal Code was in accordance with the principles of fundamental justice with regards to “societal interests” that would cause a “slipper slope” / open the flood gates

11 Can these rights be violated?
Yes There are two legal ways for the government to violate our Charter rights: Section 1 Section 33

12 Section 1: The Reasonable Limits Clause
“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

13 Section 1: The Reasonable Limits Clause
R. v. Oakes established a two-part test, often referred to as the Oakes test. Can a limit be justified? Is objective of legislation important enough in terms of societal concerns to warrant overriding a right? Proportionality test Rational connection between the limitation of rights and the objective of the legislation? Aka rational connection Does the limitation impair rights or freedoms as little as possible? Aka minimal impairment Are the effects of the limitation proportional to the objective?

14 Section 33: The Notwithstanding Clause
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter

15 Section 33: The Notwithstanding Clause
Basically: a Provincial legislature can pass a law that is inconsistent with the Charter Legislation must be reviewed every 5 years Open to great use, but used very rarely: Quebec (language laws) Saskatchewan (back-to-work legislation in 1986) p

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