APPLYING THE CHARTER

  What would society be like if we were allowed to do and say anything we like?  Irony– there are mechanisms in place to ensure and protect your rights and freedoms AND there are mechanisms which restrict those same rights and freedoms YOUR RIGHTS

 Section 1- -Referred to as the reasonable limits clause -“Charter of Rights and Freedoms guarantees rights and freedoms set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” -Read case study R. v. Oakes page R. v Oakes -Accused claimed reverse onus provision violated his rights to be presumed innocent until proven guilty LIMITATIONS

  Courts decide if a law is sufficiently important to warrant overriding a right or freedom 1.Court will ask if the law relates to societal concerns which are pressing and substantial in a democratic society. IF YES, COURT PROCEEDS TO APPLY PROPORTIONALITY TEST PROPORTIONALITY TEST

 2.Proportionality Test- Court must determine if limitations on rights satisfy proportionality test (weighing the interests of society against those of individuals and groups) 3 Parts a)Is there a rational connection between the limitation of rights and objective of the legislation? b)Does the limitation impair rights or freedoms as little as possible? c)Are the effects of the limitation proportional to the objective? Proportionality Test

 Section 33 (1) -Referred to as the “notwithstanding clause” -Section allowed federal and provincial governments to override some of the rights and freedoms in the Charter -Allows governments to pass legislation that is inconsistent with the rights set out in s. 2 (Fundamental Freedoms) and ss. 7 to 15 (Legal and Equality Rights) Limitations

 Section 52(1) of the Constitution  Called the supremacy clause, and it reads as follows: “ The constitution of Canada is the supreme law of Canada, and any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”  If a law violates a Charter right and cannot be justified under S.1, the courts may declare the law unconstitutional Challenges Under the Charter

  When a court declares a law unconstitutional it can: 1. Strike Down the entire law or particular provision that is an issue 2. Read Down the legislation if it is interpreted too broadly and narrow down the understanding of the law 3. Read in a term so that the legislation will stand and the court will not have to strike it down Challenges Under the Charter

  Should a court determine that an individual’s rights has been violated, he or she can apply to the court for a remedy under Section 24 of the Charter:  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.  24.(2) evidence may be excluded if its collection violated a right, if admitting it “would bring the administration of justice into disrepute” Remedies under the Charter

  If a complaint made in accordance to s. 24(1 ) is successful, the court may issue an:  injunction: Court order requiring a specified party to take a specific action  Damages: monetary awards for compensation or injury  Stay of Proceedings against the accused under s.24(2) - all proceedings against the accused will end. Remedies under the Charter