INS AND OUTS OF THE CCRF

CANADIAN CHARTER OF RIGHTS AND FREEDOMS Pierre Trudeau’s goals were to 1) Entrench the Canadian Charter of Rights and Freedoms - This means they would be protected from any government in power. Also, it would become Constitutional Law – meaning it can override all other laws. Any law enacted by federal OR provincial governments must be within the terms set out in the Constitution. 2) Patriate the Constitution from the U.K. - Early on, Quebec hated this…why??

ODDS & ENDS OF THE CHARTER This power shift scared politicians and in the end a few adjustments were made to ensure the Charter would fly…these adjustments could be considered LIMITATIONS on the CHARTER JURISDICTION: only applies to issues related to the federal or provincial governments. If the situation does not include those governments, it is a Human Rights Code violation…not the Charter. SECTION 1 – REASONABLE LIMITS CLAUSE: Rights and Freedoms are not absolute, they are subject to “reasonable limits.” Who decides?? How do they decide??

ODDS & ENDS OF THE CHARTER SECTION 33 – THE NOTWITHSTANDING CLAUSE: Earlier it stated politicians were worried about the power of the Charter (as it was now the judiciary branch that held MAJOR power). The governments had to make sure they could override a freedom or right if necessary. Can you think of a situation when that might be NECESSARY?? S.33 gives governments the power to override freedoms and rights. To avoid abuse, these laws must be review every 5 years. Why is the number of years significant??

CHARTER NOW LAW!!! April 17, 1982 was a BIG day for Canada!!!! W/ provinces’ consent (minus Quebec), we requested the U.K. to patriate the Canadian Constitution Eventually decided Quebec’s consent wasn’t mandatory and that the Charter applied to them Queen signed the Canada Act, which had 2 major implications Constitution Act (The Charter) was entrenched Changed British North America Act to the Constitution Act

THE CHARTER & LEGISLATIVE SUPREMACY The Charter empowered the Courts (namely the Supreme Court of Canada) Before the Charter, the courts would only rule laws invalid if they were ultra vires that government’s authority After the Charter, the courts could declare laws invalid and illegal if they infringed the Charter (What’s the formula called?) Is this too much power in the hands of judges?? Arguments for and against??

SECTION 1: REASONABLE LIMITS The rights and freedoms of the Charter can be violated if the violation is reasonable and justifiable The Oakes Test – The Supreme Court test for determining whether a violation is reasonable and justifiable 1 – Has a law been broken?? 2 – Were Charter rights or freedoms infringed?? If this is the case, we now move to the OAKES TEST!!!

OAKES TEST SUFFICENT IMPORTANCE 1) The government must show that its objective is sufficiently important to warrant a violation of a right or freedom - What is the GOAL of the law created? - Is that goal “pressing and substantial” in society?

OAKES TEST PROPORTIONALITY 2) Rational Connection – It must be necessary to achieve the goal - Does the LAW created rationally connect to the GOAL of the law - When doing write ups for this, try and explain how the law will actually achieve the goal in a rational way

OAKES TEST 3) Minimal Impairment – The government didn’t go overboard in achieving the goal) - Could the government have achieved the same goal without taking the right/freedom away to such an extent - Did the government go TOO far??

OAKES TEST 4) Detriments vs. Benefits – The solution must not be worse than the problem - Explain all the BENEFITS the law will create - Explain the detriment to the right/freedom - Which wins?? LET’S LOOK AT TRUMP’S TRAVEL BAN…..