CLN4U

 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

 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

 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

1.
2.
R. v. Oakes established a two-part test, often referred to as the
Oakes test .
Can a limit be justified?
• Is objective of legislation important enough in terms of societal concerns to warrant overriding a right?
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

Section 33: The Notwithstanding
Clause
 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)