The Canadian Charter of Rights and Freedoms

Background: Right: a legal, moral, or social entitlement that citizens can expect, mainly from the government Freedom: the right to conduct one’s affairs without governmental interference.

History Pre-Charter, Canada had a Bill of Rights Enacted in 1960 by John Diefenbaker Recognized: A) the rights of individuals to life, liberty, personal security, and enjoyment of property B) freedom of religion, speech, assembly and association C) freedom of the press D) the right to counsel and the right to a fair hearing

What was wrong with it? 1. Federal Statute – only applied to federal jurisdiction 2. Statue – does not take precedence over any other statute. Up to Judge to decide 3. Statute – could be amended by a majority vote in the House of Commons

Pierre Elliot Trudeau

Why the Charter? Entrenched in the Constitution: 1. Applies to provincial and federal jurisdiction 2. Constitutional law so overrides all other law 3. Can only be amended through the constitutional amending formula

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. 7-15 (legal and equality rights) of the Charter Can only remain in effect for up to 5 years – then must make a renewed declaration

Examples: Ford v. Attorney General of Quebec [1988] 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.

Less Successful Attempt: Turn to page 82 in text: Law in the Extreme

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 votes Supporters 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?

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.

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.”

NO! The government is not involved in any capacity. You will have to go through human rights legislation in Chapter 5.

Enforcement Supreme Court of Canada has been called the Guardians of the Constitution Charter 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!

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?

s. 1 Reasonable Limits S. 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.

Law and Disorder Let’s look at a video to see if this makes sense.

Oakes Test 1. Reasonably important objective 2. Logically connected 3. Limited as little as possible 4. More severe the rights limitation, the more important the objective must be.

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.

Fundamental Freedoms:

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.

Examples: R v. Big M Drug Mart [1985] -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.

Limits Parents 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.

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 included Let’s watch a video (It’s a Free Country) to make this clearer.

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.

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.

s. 3 Democratic Rights Every citizen has the right to vote Limits: age, mental capacity, residence, registration Judges are restricted Should inmates be allowed to vote? Turn to p. 91 of text.

S. 6 Mobility Rights Move in and out of the country and between provinces Limits: extradition, provincial programs that favour permanent residents

s. 7 Life, Liberty & Security of the Person -most difficult provision Life: a fetus is not a person Rodriguez v. B.C.[1993] 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

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.

Security of the person: R v Security of the person: R v. Morgentaler [1988] 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.

s. 8 Unreasonable Search and Seizure The police must have a good reason for searching the person, home or belongings of an accused Must be done fairly e.g. no fishing expeditions

R v. Parker Lets look at a case to make this clearer p. 95 of text

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?

No! R v. Ladouceur [1990] Pulled over at a random stop, police discovered his license was suspended. Convicted Appealed to O.C.A. and S.C.C. dismissed Justified under s. 1

S. 10 Rights while under arrest or detention 1. be promptly and clearly informed of the reason for arrest or detention 2. be informed that they may obtain the assistance of a lawyer 3. Must stop questioning until accused has seen lawyer

s. 11 Rights when charged with a criminal offence Trial must take place within a reasonable time Accused cannot be forced to testify Let’s look at R v. Askov p. 97

s. 12 Cruel and unusual punishment 1. the gravity of the offence 2. the personal characteristics of the offender 3. the particular circumstances of the case E.g. possession of 1 marijuana cigarette – minimum sentence in 1970 was 7 years Robert Latimer sentencing was a big challenge

s. 13 Rights of witnesses in court Witnesses cannot have their testimony used against them E.g. eye witness in a hit and run was at the scene because he was involved in a drug deal

s. 15 Equality Rights 1. The complainant must show that he or she has been treated unequally and that the effect of the unequal treatment was discriminatory 2. The government must then try to demonstrate that the law is “demonstrably justified” under s. 1 of the Charter as a reasonable limit E.g. although “every individual is equal”, a 9 year old cannot legally drive a car

Language Rights Able to communicate and receive services from the federal government in both languages Able to be educated in both languages Languages = English & French

Aboriginal Rights Doesn’t confer new rights but rather protects the rights of Aboriginal peoples from the Charter provisions

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.

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?

Fact Since 1982 the SCC has overturned some 80 laws passed by democratic parliaments Many other proposed laws have not been enacted because legislators know they would not survive a Charter challenge.

One Last Video What 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