Violating The Charter II CLN4U

Charter Violations If an individual feels their rights have been violated, the onus is on the individual to prove this to the court If an individual feels their rights have been violated, the onus is on the individual to prove this to the court If proven, the onus shifts to the government to show the limit was justified If proven, the onus shifts to the government to show the limit was justified

Charter Violations If the court decides the right was violated and the limit is not reasonable, there are a number of actions available: If the court decides the right was violated and the limit is not reasonable, there are a number of actions available: Strike down entire law Strike down entire law Strike down sections of the law Strike down sections of the law Read down the law: law needs to be narrowed Read down the law: law needs to be narrowed R. v. Butler, pg 206 R. v. Butler, pg 206

Charter Violations The court may also: The court may also: Read in a term to allow legislation to stand, but corrected Read in a term to allow legislation to stand, but corrected Vriend v. Alberta, p. 118 Vriend v. Alberta, p. 118 Homosexual man fired from a Christian college Homosexual man fired from a Christian college Sexual Orientation not included in Albertas human rights legislation, so Vriend was unable to have his human rights complaint heard Sexual Orientation not included in Albertas human rights legislation, so Vriend was unable to have his human rights complaint heard Supreme Court read in the term Supreme Court read in the term Declare law unconstitutional, but give government time to change law or fix situation Declare law unconstitutional, but give government time to change law or fix situation

Remedies Under The Charter If an individuals rights have been violated, the court has various remedy options If an individuals rights have been violated, the court has various remedy options The right to remedies is guaranteed in section 24 of the Charter The right to remedies is guaranteed in section 24 of the Charter S.24(1) – right to seek remedy in court S.24(1) – right to seek remedy in court S.24(2) – admissibility of evidence S.24(2) – admissibility of evidence

Remedies Under s.24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Possible remedies: Possible remedies: Injunction: take some sort of action or cease an action Injunction: take some sort of action or cease an action Damages: $$ Damages: $$

Remedies Under s.24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Possible remedies: Possible remedies: Stay of proceedings: court case stopped in order to determine if evidence can still be admitted. Stay of proceedings: court case stopped in order to determine if evidence can still be admitted.

R. v. Butler Summarize the definition of obscenity according to the three categories identified. Summarize the definition of obscenity according to the three categories identified. Explain the Community Standard of Tolerance test Explain the Community Standard of Tolerance test Explain the defence of Artistic Merit – should this defence have held up? Explain the defence of Artistic Merit – should this defence have held up? Explain the three steps in the proportionality test and apply this test to this case. Explain the three steps in the proportionality test and apply this test to this case. Rational connection (between including obscenity laws in the Criminal Code and showing societal concern for the victimization of women) Rational connection (between including obscenity laws in the Criminal Code and showing societal concern for the victimization of women) Minimal impairment ( definition of obscenity restricted to those items that were sexually explicit with violence or degrading/dehumanizing) Minimal impairment ( definition of obscenity restricted to those items that were sexually explicit with violence or degrading/dehumanizing) Balancing harm to society against limiting rights (court held limitation of rights was justified considering the harmful effects of exploitation) Balancing harm to society against limiting rights (court held limitation of rights was justified considering the harmful effects of exploitation) Considering this, how might an artist justify his or her freedom of expression rights? Considering this, how might an artist justify his or her freedom of expression rights?