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Unit 2
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A constitution is a blueprint of how a country should be run (governed) and what it should be like.
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In 1982, Trudeau PATRIATED the
Constitution so it was solely in the hands of Canadians.
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The 1982 Constitution Act had five changes
(you don’t need to memorize them all)
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One major change was the Charter of Rights and Freedoms – it is gave civil rights!
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This document guaranteed rights to individuals; this meant that provinces would have to give up power
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This was the major concern to the provinces.
So initially, they refused to sign.
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Trudeau managed to get the provinces to sign the new Constitution and to accept the CCRF
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But... he had to add a very contentious clause to the Charter
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Section 33 “the notwithstanding clause”.
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This is the HAMMER
This allowed provinces to use an escape hatch and violate rights and freedoms if then needed to.
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1982
Guaranteed rights
Initiated by P.E. Trudeau
Entrenched into the Constitution
 Therefore the Constitution gets a new year, 1982
Protected/upheld by the Supreme
Court of Canada (SCC) who hears appeals based on issues that conflict with the CCRF.
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The law is completely thrown out as un-
Constitutional
The court can alter the wording of a law so that it does not violate the Charter
The government will be forced to re-write the law so that it does not contravene the Charter
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Known as the reasonable limits clause , or the limitations clause
Allows the government to legally limit a citizen’s charter rights
Has been used to prevent objectionable conduct as well as prevent unreasonable interference by the government into the lives of Canadians
Charter rights are not absolute and it is necessary to limit them in order to achieve "collective goals of fundamental importance".
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 "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.“
*NOTE : constitutional lawyers make thousands of dollars annually fighting over the word "reasonable"
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Section 2 of charter (Pg 559 of text)
Conscience and religion (think and believe)
Thought, belief, opinion and expression, press and media
Peaceful assembly (gather ‘yo)
Association (hang out with who you want)
Video by students: https://www.youtube.com/watch?v=sDOpjUhIHUM
 1. Does it make a difference that Mr. Keegstra was teaching his views to students?
 2. What is the impact of violating a person’s freedom of speech?
 3. Do you think that people should always abide by the written law, or should there be room for extenuating circumstances?
10. Do you think that publicizing cases like Keegsta’s incites more hate speech or gives more attention to organizations promoting hate? Why or why not?
 4. Do you think that laws like s. 319(2) cause societies to be more tolerant with greater social harmony?
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 Famous Quote:
"If I cannot give consent to my own death, whose body is this? Who owns my life?"
The court rejected her argument in 1993, ruling 5-4 that society's obligation to preserve life and protect the vulnerable outweighed her rights. However, the court was deeply divided.
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Sue Rodriguez was diagnosed with ALS in early 1991.
She fought to have a legal right to assisted suicide;
She took her cause to the SCC, but ultimately lost the battle.
Canadians do NOT have the right to die.
 under the CCC, assisted suicide is punishable by a maximum sentence of
14 years in prison.
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The matter wasn’t over.
Kay Carter and Gloria
Taylor took Canada to court and the case was heard at the SCC again (rare!)
Challenged that the law was a violation of the CCRF.
In a unanimous decision on
February 6, 2015 , the Court struck down the provision in the CCC
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Thus giving Canadian adults who are mentally competent and suffering intolerably and enduringly the right to a doctor’s help in dying .
Court gave the government one +year to draft a new law that complies with the ruling.
April 2016 it is effective
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 R v. Big M Drug Mart (1985) freedom of religion; Sunday shopping
Dunmore v. Ontario (2001) workers to form a union
— the right of farm
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Eventually the matter about whether or not Gurbaj Multani should be permitted to exercise his religious freedoms and bring his kirpan to school was argued at various levels of court, with the final decision coming from the Supreme Court of
Canada in March 2006.
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Video and case
Click here
Your opinion?
What section of the CCRF does this affect?
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SCC decision where the
Court held that prisoners have a right to vote under section 3 of the CCRF
All Canadian citizens have a right to vote
2002
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Right to enter and leave Canada freely
Right to move from province to province and seek work
There has not been a lot of case law involving this section; but you need only look at other countries where this right is restricted to see why this section is needed
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Life, liberty and security of the person
Protection from unreasonable search and seizure
Rights of a person under arrest
Rights of an accused person during trial
Protection from cruel and unusual punishment
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Search and Seizure
“ Everyone has the right to be secure against unreasonable search or seizure.”
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Detention
(not the school kind silly)
“Everyone has the right not to be arbitrarily detained or imprisoned.”
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SCC decision which held the abortion provision in the CCC was unconstitutional it violated a woman's right under section 7 of the CCRF to security of person.
 Since this ruling, there have been no criminal laws regulating abortion in Canada.
 Morgantaler in jail in the 1970's (he served
10 months)
 Morgantaler receiving the Order of Canada in
2008
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11. Any person charged with an offence has the right:
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time; (habeus corpus)
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
 (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
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(e) not to be denied reasonable bail without just cause;
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 "Access to a waiting list is not access to health care." Chief Justice
Beverley McLachlin
Dr. Chaoulli:
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SCC appeal case – 1990 established the criteria and standards by which we judge whether an accused's right under the CCRF, s11 (b) "to be tried within a reasonable time " has been infringed.
 Askov’s case took 2 years
to come to trial – too long!
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S. 15 (1) Right to be free from discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability
This section is probably the most litigated section in the Charter
S. 15 (2) Gives governments the right to create affirmative action programs
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 “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
 This is why corporal punishment is out 
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The notwithstanding clause (s 33)
Making a law immune to the Charter
Could be used to force conscription, or to remove the right to be outside after 10pm, for example
Not used very often
Political suicide
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Are not ABSOLUTE?
Say Whaaaat!
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Of course, the rights guaranteed to you in the
CCRF are not absolute
There are two separate sections of the
Charter that can be used by the government to limit your rights, in two very different ways
SECTION 1 and 33
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First, the law must have a pressing and substantial objective
Second, the means must be rationally connected to the objective
There must be only a minimal impairment of rights
Restrictions
 Reasonable limits (s1)
 Notwithstanding (s33)
Freedoms
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Fundamental Freedoms
Democratic rights ( s 3-5)
(s2)
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Mobility rights (s6 )
Legal rights (s7 … -14)
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Equality rights (s15 )
Minority Language educational rights (s16)
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 http://www.youtube.com/watch?v=-
EMkcD1cmPA
3 minutes
M. Villeneuve, 2013
A deeper look at the Oakes Test
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The case involved a drug user who was found to be in possession of a large quantity of hashish oil and cash
At Issue : The Narcotics Control Act, which had a
"reverse onus" provision
Contrary to the traditional presumption of innocence, the act said Oakes would have the opportunity at trial to prove that he wasn't intending to traffic the drugs
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David Oakes charged with possession of drugs and possession with intent to traffic
Section 8 NCA (now called the Controlled Substances Act  it is the accused’s onus to prove that they did not have the intent to traffic
If not proven, they would be charged with possession with the intent to traffic
Challenged section 8 of NCA as an infringement on his section 11(d) right to be presumed innocent until proven guilty
Section 8 is no longer in effect as it violates section 11(d)
*The Oakes Test was created because of this case
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Only possible defense? "Yes, your
Honour, I was going to smoke it all myself.“
The government said the law was
" reasonable "; Oakes' lawyers said is was a violation of a fundamental principle of justice
In making their ruling, the judges set out a framework for interpreting the word "reasonable."
This has come to be known as the
" Oakes Test .”
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First, the law must have a pressing and substantial objective
Second, the means must be rationally connected to the objective
There must be only a minimal impairment of rights
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 What exactly was the objective of the controlled drugs and substances act (formerly NA)?
-To stop drug trafficking, right?
 Is that a " pressing and substantial " objective for the federal government? Maybe even important enough to justify overriding the Charter?
-Well, yea. Drugs are bad.
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 The measures adopted in the law must be carefully designed to achieve the objective in question.
Does presuming that someone is guilty help the government to reduce drug trafficking?
-Uh, no.
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 Presuming someone to be guilty is not , therefore, rationally connected to the objective and thus cannot be justified.
Were Oakes' rights minimally impaired ?
Well, being presumed guilty is a pretty big impairment, wouldn't you say?
 Isn't a road side breathalyzer test a total violation of s. 8 (unreasonable search and seizure) of the CCRF?
 Police pull you over at random, without the slightest suspicion that you've done anything wrong, and ask you to blow into a breathalyzer. What's up with that?
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If someone were to challenge the section of the Highway Traffic
Act that allows these tests, what would a
Section 1 analysis look like?
Could it be "saved" under S.1?
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First, the law must have a pressing and substantial objective
Second, the means must be rationally connected to the objective
There must be only a minimal impairment of rights
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all
In other words…
No one is above the law, not even the police .
You now know far more about the CCRF than the average Canadian citizen.
Be proud.
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R. v Askov (1990) Delay caused by a backlog in courts can violate a person’s right to have a trial within a reasonable period of time.
Regina v. Tessling (2004) An airplane flew over a house to measure the heat coming from it. (Police suspected a marijuana grow op.)
The police did not have a search warrant to measure this heat.
The Court decided that a warrant was not needed because the information about the heat was open to the public and did not reveal intimate or biological information about people in the house.
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R. v. Harrison (2009) At issue: Section 8 & 24 (2)
If police search a car — acting on nothing more than a hunch — and then find 35 kg of cocaine valued at $4 million, do the ends justify the means?
Would the admission of the evidence bring the
"administration of justice into disrepute?" contrary to s. 24 of the Charter?
So, should the evidence be admitted, or not?
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In 1982, Susan Brooks, Patricia Allen and
Patricia Dixon were all part-time cashiers at
Safeway who became pregnant.
The Safeway insurance plan that provided benefits for loss of pay due to accident or sickness did not give full benefits for 17 weeks for those who were unable to work due to pregnancy.
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The Court unanimously found that Safeway violated the provincial Human Rights Act by failing to provide equal compensation for those who missed work due to pregnancy.
This decision overturned the earlier, controversial case of
Bliss v. Attorney General of
Canada , [1979].
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 Law v. Canada , (1999) discrimination can be identified through a three-step test:
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Did the law, program, or activity impose differential treatment between the claimant and a comparator group? That is, was a distinction created between the groups in purpose or effect?
If so, was the differential treatment based on enumerated or analogous grounds?
If so, did the law in question have a purpose or effect that is discriminatory within the meaning of the equality guarantee?
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McKinney v. University of Guelph (1990) Mandatory retirement. SCC said yes it was discrimination, but it was
"saved" under S. 1
Miron v. Trudel (1995) Discrimination based on marital status. The Court decided that under section 15, common law couples should have the same rights to government insurance benefits as married couples.
Canadian Foundation for Children, Youth and the Law v.
Canada (2004) Age discrimination / assault. A.K.A. "the spanking case." SCC said spanking was OK only IF: child was between the ages of 2-12, no object was used and no hits to the head
 Each of the appellants was born deaf. They contended that the absence of interpreters impaired their ability to communicate with their doctors and other health care providers, and thus increased the risk of misdiagnosis and ineffective treatment
 The provincial gov't tried to argue that a) because the interpreters were hired privately, the
Charter didn't apply and 2) if it did apply, the decision to cut funding could be saved under S.1 as a
"reasonable limit."
 Governments, just as they are not permitted to escape Charter scrutiny by entering into commercial contracts or other “private” arrangements, should not be allowed to evade their constitutional responsibilities by delegating the implementation of their policies and programs to private entities.
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James Egan and John Norris Nesbit, the plaintiffs, were a gay couple who had been in a conjugal relationship since 1948.
Upon reaching age 65 in 1986, Egan became eligible to receive old age security and a guaranteed income supplement from the government under the Old Age Security
Act .
The Old Age Security Act provides that a spouse of the pensioner may receive a spousal allowance should their combined income fall below a certain amount. When Nesbit reached 65, he applied to the Department of National Health and Welfare for a spousal allowance. However, he was refused on the basis that spouse, defined in section 2 of Old
Age Security Act , did not include a member of the same sex. http://en.wikipedia.org/wiki/Egan_v._Canada
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Egan lost the appeal, but the court was deeply divided.
The case became an important precedent because there was a recognition that sexual orientation was an "analoguous ground" under s. 15
This proved useful in later cases such as M v. H and Vriend
Jo
Joseph Arvay, the lawyer who represented Egan.
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Do you want to know the skinny on the who loves it and who doesn’t?
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What, you mean some people DON’T love the Charter?
Shockingly, YES. And they come from both sides of the political spectrum.
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 Charter favours corporate and individual rights, rather than group or social rights
Appointed judges do not have to be accountable for their decisions
No right to housing, education, basic standard of living
Section 1 gives the government an " easy out " when it limits rights
 (see Michael Mandel, "The Charter & the Legalization of Politics in Canada)
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 Gives the Supreme Court too much power; sets up a tension between an elected
Parliament and an appointed judiciary
Complain of "judicial activism" by the SCC; says the SCC has gone too far in asserting its powers
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Charter has given too much power to minority groups and accused criminals
(see Morton and Knopff, The Charter Revolution & the Court Party )
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 In 2006, Liberal leader Paul Martin suddenly raised s. 33 as an election issue, promising that if elected, the Liberals would amend the Charter to prevent the federal government from using it.
Lawyers and politicians debated intensely.
Average Canadians basically yawned. No one at the local Tim Horton's could figure out a) what the heck the notwithstanding clause was, or; b) why Martin thought they cared about it.
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You will recall that one of the key concerns expressed by Charter critics was that it put too much power in the hands of the courts, at the expense of the Parliament.
Section 33 was an attempt to address that concern head on, and to give governments an loophole or
"safety valve" if needed.
It was, and remains, intensely controversial.
Section 33 is uniquely Canadian — there are few if any other constitutions in the world that have anything like it.
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All section 33 really says is that if a federal or provincial legislature wants to, they can override the Charter.
But don't panic: they can only violate sections 2 and 7-15.
Oh, wait!
Those sections deal with fundamental freedoms, legal rights and equality. We might want those.
 The federal or a provincial government can only override the Charter IF:
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They state in the preamble of the bill which sections of the Charter the bill violates
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The law is in effect for 5 years or less — if longer, the law must be renewed. (And elections have to be held every 5 years, right? Try campaigning on this slogan: Hey, vote for us! We violated the Charter1)
So…has section 33 ever been used?
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Under a provincial Liberal government — not the
PQ — it was used in 1988 to protect the French only sign law, which clearly violated s.2 (freedom of expression)
In effect, the government of Quebec was saying that notwithstanding the Charter, their law was necessary in order to protect and preserve the
French language.
The law was not renewed after the 5 year limit.
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It was used by the provincial government to justify back-to-work legislation passed during a labour dispute involving dairy farmers
The provincial government thought that their law violated s. 2(d) freedom of association, so they invoked the notwithstanding clause
Embarrassing fact : when the case got to the SCC, the gov't was told that they didn't need to use s. 33 after all. (S. 1 was enough. Doh!)
1988. The Forced Sterilizations Act .
 Tried to limit the amount of compensation to be
 paid out to victims of forced sterilizations
Public outcry against the bill was so loud that
Premier Klein ultimately withdrew it.
2005. The Marriage Act .
 Tried to invoke s. 33 and define marriage as heterosexual marriage only.
 However, the SCC ruled in 2004 that only the
Parliament of Canada can define marriage.
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1. review your notes
2. highlight your options on the assignment sheet
3. bring research to class on Monday and one of the four all done
4. eat chocolate... Rake leaves... Jump in them...
5. don’t get carded.
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