Canadian Charter of Rights and Freedoms
Published on Nov 18, 2015
No Description
MORE DECKS TO EXPLORE
PRESENTATION OUTLINE
Canadian Charter of Rights and Freedoms
Fundamental Freedoms
Freedom of Conscience and Religion
Freedom of Thought, Belief, Opinion and Expression
Freedom of Peaceful Assembly
Freedom of Association
Sec. 3 - 5: Democratic Rights
FROM OJEN.CA
These sections set out the rights and provisions concerning the Canadian political process and the exercise of democracy for
Canadian citizens. These include:
• The right of citizens to vote and run for government office (s. 3);
• The guarantee that no legislative body or House of Commons will be in power
for more than five years without a democratic election, except in very limited circumstances (s. 4); and
• The guarantee that Parliament and every other legislature will be working for a set period (a “sitting”) out of every 12 months (s. 5).
These sections set out the rights and provisions concerning the Canadian political process and the exercise of democracy for
Canadian citizens. These include:
• The right of citizens to vote and run for government office (s. 3);
• The guarantee that no legislative body or House of Commons will be in power
for more than five years without a democratic election, except in very limited circumstances (s. 4); and
• The guarantee that Parliament and every other legislature will be working for a set period (a “sitting”) out of every 12 months (s. 5).
Sec. 6: Mobility Rights
FROM OJEN.CA
Mobility rights concern the freedom of Canadian citizens to be, and move within, Canada. Citizens have the right to:
•Travel in any province or territory;
•Work in any province or territory; and
•Enter, remain in, and leave Canada.
Note that while the latter applies only to Canadian citizens, the provisions for travelling and working in Canada also apply to permanent residents. In some professions, such as teaching
and practicing law, provincial standards and certifications vary, and individuals must meet
these to work in these jurisdictions.
Mobility rights concern the freedom of Canadian citizens to be, and move within, Canada. Citizens have the right to:
•Travel in any province or territory;
•Work in any province or territory; and
•Enter, remain in, and leave Canada.
Note that while the latter applies only to Canadian citizens, the provisions for travelling and working in Canada also apply to permanent residents. In some professions, such as teaching
and practicing law, provincial standards and certifications vary, and individuals must meet
these to work in these jurisdictions.
Sec. 7 - 14: Legal Rights
FROM OJEN.CA
Legal rights refer to the ways in which persons in Canada are protected in encounters with
the justice system. Covering eight individual sections of the Charter, these are multifaceted
and complex. Among other protections, everyone has the right:
• To life, liberty and security of the person, and to not be deprived of these except
under special circumstances (s. 7);
• To be secure against unreasonable search or seizure (s. 8);
• To not be arbitrarily detained or imprisoned (s. 9);
• To retain and instruct a lawyer to represent them in justice proceedings (s. 10);
• To have a trial within a reasonable time period (s. 11(b));
• To be innocent until proven guilty (s. 11(d));
• To not be subjected to any cruel or unusual treatment or punishment (s. 12).
Legal rights refer to the ways in which persons in Canada are protected in encounters with
the justice system. Covering eight individual sections of the Charter, these are multifaceted
and complex. Among other protections, everyone has the right:
• To life, liberty and security of the person, and to not be deprived of these except
under special circumstances (s. 7);
• To be secure against unreasonable search or seizure (s. 8);
• To not be arbitrarily detained or imprisoned (s. 9);
• To retain and instruct a lawyer to represent them in justice proceedings (s. 10);
• To have a trial within a reasonable time period (s. 11(b));
• To be innocent until proven guilty (s. 11(d));
• To not be subjected to any cruel or unusual treatment or punishment (s. 12).
Sec. 15: Equality Rights
FROM OJEN.CA
Individuals in Canada have a right not to be discriminated against by the government or
government agents based on a set of grounds that relate to being members of certain
communities and social identity groups. Many of these groups were originally included in
this section (enumerated grounds), while others that have since been added by the
courts (analogous grounds).
•Enumerated grounds include race, national or ethnic origin, colour, religion, sex, age and mental or physical disability.
• Analogous grounds currently include sexual orientation, marital status, citizenship
and Aboriginality-residence.
Individuals in Canada have a right not to be discriminated against by the government or
government agents based on a set of grounds that relate to being members of certain
communities and social identity groups. Many of these groups were originally included in
this section (enumerated grounds), while others that have since been added by the
courts (analogous grounds).
•Enumerated grounds include race, national or ethnic origin, colour, religion, sex, age and mental or physical disability.
• Analogous grounds currently include sexual orientation, marital status, citizenship
and Aboriginality-residence.
Sec. 16 - 22: Official Languages
FROM OJEN.CA
These sections guarantee the use of both English and French in federal government institutions and set out special provisions
relating to the use of both official languages in New Brunswick, Canada’s only officially bilingual province.
These sections guarantee the use of both English and French in federal government institutions and set out special provisions
relating to the use of both official languages in New Brunswick, Canada’s only officially bilingual province.
Sec. 23: Minority Language Education Rights
FROM OJEN.CA
This provides a right for speakers of either official language to have their children receive primary and secondary instruction in that language, even if they are a linguistic minority
in their community. Furthermore, wherever an official linguistic minority community comprises a large enough proportion of
students, that community has the right to have that education paid for by public funds.
This provides a right for speakers of either official language to have their children receive primary and secondary instruction in that language, even if they are a linguistic minority
in their community. Furthermore, wherever an official linguistic minority community comprises a large enough proportion of
students, that community has the right to have that education paid for by public funds.
Ss. 24 and 52: Enforcement of Guaranteed Rights and Freedoms
FROM OJEN.CA
Section 24 allows parties to bring forward a claim to the courts when they feel their
rights are being violated, and s. 52 states that the Constitution of Canada is the supreme law of the land, meaning that “any
law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. These enforcement provisions are discussed in
greater detail below.
Section 24 allows parties to bring forward a claim to the courts when they feel their
rights are being violated, and s. 52 states that the Constitution of Canada is the supreme law of the land, meaning that “any
law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. These enforcement provisions are discussed in
greater detail below.
When was the Canadian Charter of Rights and Freedoms made law in Canada?
1982
As part of the Constitution Act, 1982.
Which section of the Charter guarantees the right of Canadians to gather with others in peaceful protest?
Section 2
This falls under freedom of association and of peaceful assembly.
True or False: The Charter protects the right to not face racial discrimination when seeking an apartment.
False – the Charter applies to relationships between people and the government, not between private individuals. One exception might be if the landlord in question was a government agency. Discrimination in housing would be dealt with under provincial human rights codes.
What is the most significant difference between the Canadian Bill of Rights and the Charter?
Technically, the Canadian Bill of Rights could be repealed by a simple act of Parliament. By enshrining rights and freedoms in the Constitution, the Charter goes much further to ensure their protection.
What is the main difference between an 'individual' and a 'citizen'?
An ‘individual’ is any person in Canada, whereas a ‘citizen’ is a person whose nationality is Canadian.
Why do you think the authors of the Charter included the category ‘analogous grounds’ in the section on equality rights?
To ensure that there is a mechanism within the Charter to protect against forms of discrimination that might emerge in the future.
Review the formula for amending the Charter. Does it do enough to ensure that a proposed amendment has the support of the Canadian public?
Answers will vary. It should be noted, however, that because of regional differences in population density there is the opportunity for unfairness. For instance, the combined populations of Ontario, Quebec, B.C. and Alberta account for well over 50% of Canada's population, but only four of the required seven legislatures.
Are Rights absolute?
Section 1 and the Oakes Test
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.
FROM OJEN.CA
If a court finds that a piece of legislation or government conduct infringes a Charter protected right, it must carry out an analysis to determine whether that infringement is justifiable. The legal questions through which this determination is made is called the ‘Oakes test’. The key question is whether the infringement is a “reasonable limit prescribed by law” that is “demonstrably justified in a free
and democratic society”. If the infringement is a reasonable limit, the legislation or conduct is
“saved” under s. 1.
The government has the burden of proof to show that the violation is justified under this
section in order to have the law, statute or action in question upheld by the courts. If it cannot prove that the law, statute or action in question is justified under s. 1, the courts will strike it down, or read down the statute
or law so that it complies with the Charter. For example, hate speech is currently restricted or
regulated by both federal and provincial laws.
Although the restriction on hate speech violates s. 2(b) of the Charter, it is saved under s. 1 as a
reasonable limit in a free and democratic society.
If a court finds that a piece of legislation or government conduct infringes a Charter protected right, it must carry out an analysis to determine whether that infringement is justifiable. The legal questions through which this determination is made is called the ‘Oakes test’. The key question is whether the infringement is a “reasonable limit prescribed by law” that is “demonstrably justified in a free
and democratic society”. If the infringement is a reasonable limit, the legislation or conduct is
“saved” under s. 1.
The government has the burden of proof to show that the violation is justified under this
section in order to have the law, statute or action in question upheld by the courts. If it cannot prove that the law, statute or action in question is justified under s. 1, the courts will strike it down, or read down the statute
or law so that it complies with the Charter. For example, hate speech is currently restricted or
regulated by both federal and provincial laws.
Although the restriction on hate speech violates s. 2(b) of the Charter, it is saved under s. 1 as a
reasonable limit in a free and democratic society.
So what is this OAKES TEST?
- Is the limit prescribed by law?
- Is there a pressing and substantial objective for law or gov't action?
- Is the objective rationally connected to the limit on the right?
- Does the law minimally impair the infringed right?
- Is the limit of the right proportional?
Let's talk about the Jackie Lepage and the Oakes Test.
SecTION 33
THE NOTWITHSTANDING CLAUSE
FROM OJEN.CA
One unique and controversial aspect of the Charter is s. 33 – the ‘notwithstanding clause’.
Section 33 allows Parliament or provincial legislatures to override some Charter-protected rights. It can only be used to override rights found in s. 2 (fundamental freedoms), and ss. 7-15 (legal rights and equality rights). It cannot be used to override any other sections.
This clause gives Parliament and the provinces a limited ability to pass laws that conflict with particular Charter-protected rights and freedoms. Parliament or provincial legislatures relying on this clause must expressly declare that it will override the Charter and renew this declaration at least once every five years if they intend for it to remain in force.
Despite the potential for this clause to limit the extent of Canadian rights and freedoms,
outside of Quebec, the clause has only been relied upon on three occasions since the
Charter was enacted in 1982. In the Yukon Territory in 1982, it was used in the Land Planning and Development Act, but this statute was never brought into force. In 1988, the Saskatchewan legislature used it in a law that forced striking workers back to work, but this legislation was later found not to violate workers’ freedom of association, so the use of s. 33 had been unnecessary. Finally, it was used
by the provincial government of Alberta in 2000 in an attempt to amend that province’s Marriage Act to limit the definition of marriage to opposite-sex couples. This attempt failed,
however, when the Supreme Court of Canada ruled that the definition of marriage is within federal, not provincial, jurisdiction.
One unique and controversial aspect of the Charter is s. 33 – the ‘notwithstanding clause’.
Section 33 allows Parliament or provincial legislatures to override some Charter-protected rights. It can only be used to override rights found in s. 2 (fundamental freedoms), and ss. 7-15 (legal rights and equality rights). It cannot be used to override any other sections.
This clause gives Parliament and the provinces a limited ability to pass laws that conflict with particular Charter-protected rights and freedoms. Parliament or provincial legislatures relying on this clause must expressly declare that it will override the Charter and renew this declaration at least once every five years if they intend for it to remain in force.
Despite the potential for this clause to limit the extent of Canadian rights and freedoms,
outside of Quebec, the clause has only been relied upon on three occasions since the
Charter was enacted in 1982. In the Yukon Territory in 1982, it was used in the Land Planning and Development Act, but this statute was never brought into force. In 1988, the Saskatchewan legislature used it in a law that forced striking workers back to work, but this legislation was later found not to violate workers’ freedom of association, so the use of s. 33 had been unnecessary. Finally, it was used
by the provincial government of Alberta in 2000 in an attempt to amend that province’s Marriage Act to limit the definition of marriage to opposite-sex couples. This attempt failed,
however, when the Supreme Court of Canada ruled that the definition of marriage is within federal, not provincial, jurisdiction.
AMMENDING THE CHARTER OF RIGHTS AND FREEDOMS
FROM OJEN.CA
Despite being enshrined in the Constitution, the Charter can be modified. However, the
rights and freedoms it guarantees were considered so vital to the fabric of Canadian
society that its authors created a strict rule that governments must follow in order to do so. Often called the “amending formula”, changes to the Charter require the federal government and seven of the ten provincial
legislatures to approve of the change, and these provinces must account for 50% of the
total Canadian population.
Despite being enshrined in the Constitution, the Charter can be modified. However, the
rights and freedoms it guarantees were considered so vital to the fabric of Canadian
society that its authors created a strict rule that governments must follow in order to do so. Often called the “amending formula”, changes to the Charter require the federal government and seven of the ten provincial
legislatures to approve of the change, and these provinces must account for 50% of the
total Canadian population.
Why is it significant that section 33 cannot ever apply to democratic rights, such as the right to vote in a democratic election, at least once every five years?
If democratic rights were subject to s. 33, a government could effectively suspend elections indefinitely, allowing it to force through any other legislation without being accountable to the voting public.
In your opinion, is it a threat to rights and freedoms that the Charter can still be overriden by section 33? Explain.
What are your thoughts? Ultimately the notwithstanding clause has been used very rarely and so may not present a serious threat to rights and freedoms.
Let's Look BACK
...with some interesting cases.
Mr. Vriend became a full time college employee in Alberta in 1988. In 1990, when asked by the college president, he disclosed that he was a homosexual. In early 1991 the college adopted a position on homosexuality and Mr. Vriend was asked to resign. He did not and he was fired for non-compliance with the college’s policy on homosexual practice. Mr. Vriend attempted to file a complaint with the Alberta Human Right Tribunal but could not because under the Individual’s Rights Protection Act (IRPA), sexual orientation was not a protected ground. Mr. Vriend and others filed a motion in court.
What Do you think?
- What section of the Charter is Mr. Vriend going to use in court?
- Who or what is Mr. Vriend fighting against in court?
- What about Section 1? Does it apply here?
A junior high school vice-principal was told that a student would be attending a school dance to sell drugs. He asked the student and his companion to his office and asked each if they were in possession of drugs and told them he was going to search them. A plainclothes RCMP officer was present but did not speak or act. The vice-principal found a small amount of marijuana taped in a bag taped on the student's ankle under his sock. The marijuana was turned over to the RCMP officer who arrested the student and advised him of his rights. The student tried to call his mother who was not at home and declined to call anyone else.
What do you Think?
- Would you consider this a search by the school or a search by the police?
- Which section of the Charter has been called into question?
- Knowing what you know, was this a reasonable search?
