Chapter 4 – Canadian Constitutional Law Unit 2 – Rights and Freedoms The Evolution of Canada’s Constitution

Agenda 1. The Evolution of Canada’s Constitution 1. The Evolution of Canada’s Constitution 2. Hwk. Sparrow v. The Queen, [1990] 1 SCR 1075, p McGraw Hill Ryerson CCLS (Classnet) do ?’s KU #1,2 & C #2 2. Hwk. Sparrow v. The Queen, [1990] 1 SCR 1075, p McGraw Hill Ryerson CCLS (Classnet) do ?’s KU #1,2 & C #2

Learning Goal for Today By the end of the lesson, students will be able to analyze how rights and freedoms are protected under the Charter of Rights and Freedoms By the end of the lesson, students will be able to analyze how rights and freedoms are protected under the Charter of Rights and Freedoms

Expectations Expectations CGE3f – examines, evaluates and applies knowledge of interdependent systems (physical, political, ethical, socio-economic and ecological) for the development of a just and compassionate society CGE3f – examines, evaluates and applies knowledge of interdependent systems (physical, political, ethical, socio-economic and ecological) for the development of a just and compassionate society Analyze how rights and freedoms are protected under the Charter of Rights and Freedoms Analyze how rights and freedoms are protected under the Charter of Rights and Freedoms

English Common Law and Customs Much of Canadian law is based on English common law, customs and traditions inherited from the UK Much of Canadian law is based on English common law, customs and traditions inherited from the UK British North America Act, 1867 (now renamed the Constitution Act, 1982) “a constitution similar in principle to that of the United Kingdom” British North America Act, 1867 (now renamed the Constitution Act, 1982) “a constitution similar in principle to that of the United Kingdom”

British North America Act, 1867 Enacted by British parliament Enacted by British parliament Canada subject to British law and bound by foreign policy of Britain (ie. WWI, Boer War, Alaska Boundary Dispute) Canada subject to British law and bound by foreign policy of Britain (ie. WWI, Boer War, Alaska Boundary Dispute) Final court of appeal UK Privy Counsel Final court of appeal UK Privy Counsel Canada not an independent nation Canada not an independent nation

British North America Act, 1867 WWI was the turning point WWI was the turning point Canada war contributions Canada war contributions Canada’s own seat at peace treaty Canada’s own seat at peace treaty Canada signed the peace treaty on its own Canada signed the peace treaty on its own

Statute of Westminister, 1931 Britain could no longer legislate for Canada Britain could no longer legislate for Canada Canada no longer subject to British laws Canada no longer subject to British laws Canada has independent foreign policy Canada has independent foreign policy

The Canadian Bill of Rights, 1960 After WWII realization that people need formal protection against unfair treatment by governments After WWII realization that people need formal protection against unfair treatment by governments Diefenbaker championed Canadian Bill of Rights (codified existing common law rights) Diefenbaker championed Canadian Bill of Rights (codified existing common law rights)

The Canadian Bill of Rights, 1960 (Don’t Copy) 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; (b) the right of the individual to equality before the law and the protection of the law; (b) the right of the individual to equality before the law and the protection of the law; (c) freedom of religion; (c) freedom of religion; (d) freedom of speech; (d) freedom of speech; (e) freedom of assembly and association; and (e) freedom of assembly and association; and (f) freedom of the press. (f) freedom of the press.

The Canadian Bill of Rights, 1960 (Don’t Copy) 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to (a) authorize or effect the arbitrary detention, imprisonment or exile of any person; (a) authorize or effect the arbitrary detention, imprisonment or exile of any person; (b) impose or authorize the imposition of cruel and unusual treatment or punishment; (b) impose or authorize the imposition of cruel and unusual treatment or punishment; (c) deprive a person who has been arrested or detained (c) deprive a person who has been arrested or detained (i) of the right to be informed promptly of the reason for his arrest or detention, (i) of the right to be informed promptly of the reason for his arrest or detention, (ii) of the right to retain and instruct counsel without delay, or (ii) of the right to retain and instruct counsel without delay, or (iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful; (iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;

The Canadian Bill of Rights, 1960 (Don’t Copy) 2. (cont’d) (d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards; 2. (cont’d) (d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards; (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations; (f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or (f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or (g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted. (g) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted.

The Canadian Bill of Rights, 1960 Limited impact because Limited impact because Ordinary statute and could be changed Ordinary statute and could be changed Not entrenched Not entrenched Federal jurisdiction only (ie. Bank yes, supermarket no) Federal jurisdiction only (ie. Bank yes, supermarket no) Judges reluctant to use to strike down laws Judges reluctant to use to strike down laws

The Victoria Charter, 1971, resumed attempt to reform Canada’s constitution attempt to reform Canada’s constitution Anglophone provinces wanted entrenchment, patriation (homecoming) & amending formula Anglophone provinces wanted entrenchment, patriation (homecoming) & amending formula Quebec wanted more… led to stalemate Quebec wanted more… led to stalemate

Patriation of Constitution, April 17, 1982 April 7, 1982, Queen signed UK law amending the British North America Act, 1867 to Constitution Act, 1982, adding amending formula and an entrenched Canadian Charter of Rights and Freedoms April 7, 1982, Queen signed UK law amending the British North America Act, 1867 to Constitution Act, 1982, adding amending formula and an entrenched Canadian Charter of Rights and Freedoms Protects Canadians from all levels of government Protects Canadians from all levels of government

Meech Lake Accord 1984 Prime Minister Mulroney, Quebec Premier Robert Bourassa and other premiers agreed to a constitutional amendment package that would: 1984 Prime Minister Mulroney, Quebec Premier Robert Bourassa and other premiers agreed to a constitutional amendment package that would: 1. recognize Quebec as a distinct society 1. recognize Quebec as a distinct society 2. give the provinces more power relative to the federal government (ex. supply nominees for the Senate and SCC) 2. give the provinces more power relative to the federal government (ex. supply nominees for the Senate and SCC) Not surprising the provinces were on board Not surprising the provinces were on board

Meech Lake Accord Failed Criticized by Trudeau because of Quebec distinct society clause Criticized by Trudeau because of Quebec distinct society clause Criticized by aboriginal leaders because it didn’t address their concerns Criticized by aboriginal leaders because it didn’t address their concerns Failed June 23, 1990 Failed June 23, 1990

Charlottetown Accord, 1992 Mulroney’s 2 nd attempt Mulroney’s 2 nd attempt National referendum National referendum Addressed division of powers issues (forestry, mining and cultural affairs) Addressed division of powers issues (forestry, mining and cultural affairs) Abolished the federal power of disallowance Abolished the federal power of disallowance Aboriginal concerns were addressed Aboriginal concerns were addressed Elected senate Elected senate Entrenchment of SCC appointments Entrenchment of SCC appointments Failed Failed

Humour Break