THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS CLN4U.

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMSCLN4U

Recall…• Charter is entrenched in the Constitution

• Included as part of the patriation process in 1982

• As a constitutional document, the Charter takes precedence over all legislation• Over the last 30 years, it has been somewhat common for

legislation struck down because it contravenes the Charter

Fundamental Freedoms• The Charter guarantees four fundamental freedoms

• Religion• Expression• Peaceful Assembly• Association

• These rights apply to everyone

Other rights protected under Charter• Some rights don’t apply to everyone (for example only to

citizens)• Democratic rights• Mobility rights• Legal rights• Equality rights• Language rights• Aboriginal and multicultural heritage rights

Democratic Rights• What does it mean to be a citizen?• Origins date back to the Roman Empire that consisted of

80 million people, but only 6 million enjoyed the privilege status of Roman citizenship (right to vote in assembly)

• In Canada, the Citizenship Act states that citizens are those persons who were born in Canada or born outside of Canada to a Canadian Citizen, or who have been granted citizenship under the Act and have taken the oath of citizenship p. 164

• Emily Murphy – Heritage Moment• http://www.youtube.com/watch?v=flIPB3hg6rg

Mobility Rights – Canadian Citizen• The right to enter, remain in, or leave the country are

fundamental rights of a free democratic and are guaranteed as are the rights to move freely, take up residence and work within a country

• Law Society of Upper Canada v. Skapinker

Legal Rights – Section 7 • John Lock’s classical conception of fundamental human

rights defined as life, liberty, and property are clearly reflected in s.7 of the Charter

• However not exact in nature with regards to Lock’s idea of property and s.7 because

• Property is not guaranteed, but the right to the security of person is and;

• Therefore, the early drafting stages of the charter omitted property rights

• The rights under s. 7 are not absolute and; • Can be removed by the state so long as their removal is in

accordance with the “principles of fundamental justice”

Equality Rights• Section 15 of the charter• Covers:

• “equality before and under the law and equal protection and benefit of law”

• Affirmative action programs

• Section 23 of the charter• Covers:

• Language of Instruction• Continuity of language instruction

Minority Language Educational Rights

Official Languages of Canada• Sections16-22 of the charter• Covers:

• court proceedings• Parliamentary statues and records• Communications by public with federal institutions• Rights and privileges

Aboriginal Rights• Section 25 of the charter• Covers:

• aboriginal rights and freedoms not affected by the charter

• Land claims etc.

Fundamental Justice – • For the courts, has been a matter of determining what has

been and continues to be fair and right in Canadian society

• Represents a belief in the dignity and the worth of the person and the rule of law

• Two stage process under s.7 for constitutional analysis –• Whether a law violates the principles of fundamental

justice is considered only after the court has determined that an infringement of the rights to life, liberty, or security of the person has occurred

• Likewise, courts may rule a law constitutionally valid despite its denial of life, liberty, or security of person, so long as the deprivation of these rights in in accordance with the principles of “fundamental justice”

Defining Cases in Canada• R. v. Morgentaler – SCC 1988• Appeal allowed: Section 251 (now section 287) of the

Criminal Code was an interference by the state with “bodily integrity” that violated a women’s liberty, security of the person and the right to fundamental justice under section 7 of the Charter (Textbook p. 178-179)

Can these rights be violated?• Yes• There are two legal ways for the government to violate our

Charter rights:• Section 1• Section 33

Section 1: The Reasonable Limits Clause• “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: The Reasonable Limits Clause• R. v. Oakes established a two-part test, often referred to

as the Oakes test.1. Can a limit be justified?

• Is objective of legislation important enough in terms of societal concerns to warrant overriding a right?

2. Proportionality test• Rational connection between the limitation of rights and the

objective of the legislation? • Aka rational connection

• Does the limitation impair rights or freedoms as little as possible?

• Aka minimal impairment• Are the effects of the limitation proportional to the objective?

Section 33: The Notwithstanding Clause• 33. (1) Parliament or the legislature of a province may

expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter

• Basically: a Provincial legislature can pass a law that is inconsistent with the Charter• Legislation must be reviewed every 5 years

• Open to great use, but used very rarely:• Quebec (language laws)• Saskatchewan (back-to-work legislation in 1986) p. 64-68