The Charter of Rights and Freedoms Douglas Brown Pol Sci 220 January 2010

The Charter of Rights and Freedoms The third pillar of Constitutional System in Canada (after Parliament and Federalism) A Late Addition: 1982 The site for a new politics of rights Parliament vs. Courts: new tensions Americanization?

Rights and the Constitution in Our History Importance of English common law and conventional practice Our legacy of rights: Magna Carta, 1213; Magna Carta, 1213; Bill of Rights, 1689 Bill of Rights, 1689 UN Declaration, 1948 UN Declaration, 1948 Canadian Bill of Rights, 1960 Canadian Bill of Rights, 1960 Also influential: US Bill of Rights, 1789 US Bill of Rights, 1789 European Convention, 1950 and Europe Social Charter, 1989 European Convention, 1950 and Europe Social Charter, 1989

Magna Carta, art. 39 “No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgment of his peers, or by the law of the land.”

Canadian Charter of Rights and Freedoms, What rights are included -- S. 2 fundamental freedoms Ss. 3-5 democratic rights S. 6 mobility rights Ss legal rights Ss. 15 equality rights Ss minority language rights

Section 2 Everyone has the following fundamental freedoms: a) freedom of conscience and religion a) freedom of conscience and religion b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication c) freedom of peaceful assembly c) freedom of peaceful assembly d) freedom of association d) freedom of association

Sections 3-5: Democratic rights Right to vote Five-year maximum term for federal and provincial legislatures Provision for emergency extension of parliament’s term A sitting of Parliament/ legislatures at least once a year

Sections 7-14: Legal rights “7. Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” 8. secure against unreasonable search or seizure 9. not to be arbitrarily detained 10. on arrest, prompt reasons, retention of counsel, right to habeas corpus

Legal rights, continued 11. proceedings in criminal matters with rights to be informed of offence, tried within a reasonable time, not compelled to witness against yourself, presumption of innocence, reasonable bail, etc. 12. no cruel or unusual punishment 13. no incrimination of witnesses 14. the right to interpretation if one cannot speak or understand English or French

Equality rights 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2)..does not preclude any law, program…that has as its object the amelioration of conditions of disadvantaged individuals or groups…

Sections 16-22: Language rights English and French as official languages for federal Parliament and government, Right to use either language in parliament Right to use either language in federal courts Right to communicate with federal public service in either language Similar rights in New Brunswick

Section 23: Minority Language Education Rights Right to have children receive primary and secondary education in the minority language in a province, where numbers warrant… …if parents’ mother tongue was the minority language …if parents went to primary school in Canada

Canadian Charter of Rights and Freedoms -- Interpretation and Enforcement -- S.1 Guarantee and limitations S. 24 enforcement S. 25 non-derogation of Aboriginal rights S. 28 equality of application to men and women S. 33 “notwithstanding” legislative override

Section 1 “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.”

Section 1 interpretation Three stage test… Does the law infringe a Charter right ? Does the law infringe a Charter right ? If so, is the law a reasonable limit (see Oakes test) on that right, that is it demonstrable justifiable in a free and democratic society? If so, is the law a reasonable limit (see Oakes test) on that right, that is it demonstrable justifiable in a free and democratic society? If not, what is the appropriate remedy – to strike down all or part of the law? To suspend the law? To seek a broader interpretation and application of the law? If not, what is the appropriate remedy – to strike down all or part of the law? To suspend the law? To seek a broader interpretation and application of the law?

Section 1 interpretation Chief Justice Dickson in the 1986 Oakes case sets out four criteria for “reasonable limitations”: 1.Rational connection between law and its objectives 2.Minimal impairment of the right 3.A pressing and substantial problem 4.Effects proportional to objectives

Section 24: Enforcement “1. Anyone whose rights and 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.”

Sections 25-32: selected points S. 25: Charter does not “abrogate” or “derogate” Aboriginal rights S. 26: a guarantee of a right in the Charter does not necessarily deny other rights that may exist S. 28: all rights to be guaranteed equally to male and female persons S. 32 The Charter applies to the federal Parliament and government, as well as to the provincial and territorial assemblies and governments

Section 33 S. 33: Legislatures [federal or provincial] may “expressly declare”, in an Act, “that the Act or provision thereof shall have operation notwithstanding a provision in section 2 or sections 7 to 15 of this Charter.” Any override is limited to 5 years (but can be re-enacted)

Impact of the Charter– Areas of the law substantially changed by Charter rulings Criminal code, law enforcement and prosecution Abortions, family law Workplace equity, pay equity and retirement Immigration, refugee process Unemployment insurance Language and education Advertising aboriginal rights (as a result of other provisions in Constitution Act, 1982 –not Charter as such)

Impact of the Charter– On the Judiciary and other institutions Huge increase in workload, esp. for Supreme Court of Canada Greater demand for social diversity and sensitivity of judges Huge constraint on policy-making process within bureaucracy Major focus of legal education Increased exposure, political role for judges

Impact of the Charter– On politics Empowering of litigant “Charter” groups Increased tensions: judiciary versus legislatures Promotes pan-Canadian values (resistance in Quebec) Rights discourse displaces materialist politics Caused a conservative backlash