Chapter 2
The Canadian Charter of
Rights and Freedoms
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Pierre Trudeau – wanted a “just society” and rights
entrenched
Videos/Overview
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Part 1
Part 2
Part 3
Part 4
Part 5
Part 6
Charter of Rights and Freedoms
Appendix 598 - 601
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Bell and Group Work
Review Your Understanding
Case Studies/Looking Back/Issue
Assignment x 2
Quizzes
Study Guide and Test
Civil Rights vs Human Rights
• Civil Rights:
– limit the power that a government has over its
citizens
• Human Rights:
– protect people from
unfair discrimination by
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other individuals
• Historical Documents
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Magna Carta, 1216
Declaration of Independence, 1776
Declaration of Rights of Man, 1789
United Nations UDHR, 1948
Bill of Rights, 1960 (only applied to federal
statute/matters and could be changed by parliament)
Background
• The Canadian Charter of Rights and Freedoms was
entrenched (safeguarded) in the Canadian
Constitution on April 17, 1982. Why did it take so
long?
• This means that our rights and freedoms are
protected by the constitution.
– However, courts90do the interpreting since
definitions are not provided.
• The Charter applies to every level of government
and overcomes the limitations of the previous Bill of
Rights. Also, it can only be changed by using the
amending formula.
• Most rights are not absolute; can be limited but this
must be justified.
Reasonable Limits Clause
• Section 1 of the Charter is the
Reasonable Limits Clause.
– The provision (clause) in the Charter stating
that the Charter rights and freedoms are not
absolute, so they can be limited if there is
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justification.
– Courts usually decide what "reasonable"
means on a case by case basis.
• E.g. a person's freedom of expression
may be limited if they are promoting hate
speech.
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Analyzing a Charter case
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A simple four step guide to analyzing a
potential Charter case:
1. Does the Charter apply to the case?
2. Has a right or freedom in the Charter been
infringed upon?
3. Does Section90
1 (the reasonable limits clause)
justify the infringement?
4. If not, is there a remedy provided by the Charter?
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Page 39
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R. v. Oakes, 1986 CanLII 46 (SCC) – 4 questions
Burden of Proof
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The onus of brining forth proof (evidence to
prove someone’s legal argument to the court.
The Notwithstanding Clause
• Section 33 of the Charter, also referred
to as the "overriding clause" and the "optout clause"
– This clause allows governments to enact or
maintain laws notwithstanding (or in spite of)
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the fact they may
violate rights and freedoms
in the Charter.
– If a government uses this clause, the law they
are enacting must be reviewed every 5 years.
– Clause only applies to freedoms (s.2), legal
rights (s.7-14) and equality rights (s.15).
What do you think? Do you like the
“notwithstanding clause”? Why or why not?
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Questions:
• Case R. v. Oakes Pg. 39
• Review Your Understanding Pg. 40
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Fundamental Freedoms
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Section 2 - 4
Fundamental Freedoms
• Section 2 of the Charter explains the
basic freedoms provided to all
Canadians.
• These are fundamental
freedoms:
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– Freedom of Conscience and Religion
– Freedom of Thought, Belief, Opinion, and
Expression
– Freedom of Peaceful Assembly
– Freedom of Association
Freedom of…
Conscience and Religion
• Everyone in Canada is free to practice
and follow their religion or faith.
• No one can be forced to act in a way that
violates their religious beliefs.
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– R.v.Big M Drug Mart, 1985
– Multani v. Commission scolaire MargueriteBourgeoys, 2006
Thought, Belief, Opinion, Expression
• Includes all forms of communication and
expression (e.g. speech, media, film,
arts)
• This freedom may be limited if a person
promotes hate or
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discrimination…advertising
– R. v. Keegstra, 1990 (hate propaganda)
– R. v. Butler, 1992 (obscene material)
– Canada v. JTI-Macdonald Corp., 2007
(smokes - advertising)
Freedom of…
Peaceful Assembly
• Usually associated with the right to
participate in peaceful demonstrations
• Environmental, workers/labour, social
justice, community/dump.
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• The 2011 Vancouver Stanley Cup riot was a public disturbance that broke out in
the downtown core of Vancouver, British Columbia, Canada on Wednesday, June
15, 2011. The riot happened immediately after the conclusion of the Boston Bruins'
win over the Vancouver Canucks in game seven of the Stanley Cup Finals, which
won the Stanley Cup for Boston. At least 140 people were reported as injured
during the incident, 1 critically;[1][3] at least 4 people were stabbed, 9 police officers
were injured, and 101 people were arrested that night.[6][7] In July 2015, four years
after the riot, police finished their investigation and recommended the final charges
against two suspects, bringing the total to 887 charges laid against 301 people.
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Association
• Refers to the right of individuals to join
together in groups (e.g. political parties,
unions, clubs)
– SCC has expanded the interpretation of
freedom of association. Recognizes workers’
right to collective bargaining. Any law or
government action
that interferes with
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collective bargaining violates freedom of
association under the Charter.
– In January, the Supreme Court struck down
the law that prevented some public-sector
employees from striking. The court also gave
Saskatchewan one year to enact new
legislation and made clear that any new law
had to be fair to workers.
Democratic, Mobility and
Legal Rights
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Section 3,4,5
Section 6
Section 7 - 14
Democratic and Mobility Rights
Democratic Rights
• Sections 3,4, and 5 of the Charter
• Definition: right of citizens to vote
– Also guarantees that an election must be held every
five years,
– 18 years of age to vote,
– provides that the federal
Parliament and provincial
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legislatures must sit at least once every 12 months.
You be the judge
• 1918 – women
• 1947 – Chinese/Japanese
• 1960 – Aboriginal
• 1970 – 18 year olds
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• 2000 – homeless
people too
• Should prisoner’s be allowed to vote?
Mobility Rights
• Section 6 of the Charter
• Definition: right to enter and leave
Canada; right to move between provinces
and territories
– Permanent residents have the rights to enter
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or remain in Canada
as long as Canada’s
immigration laws are followed.
– Charter does allow provincial governments to
impose restrictions on mobility rights.
• Lower than average employment rates can prevent
citizens from other provinces coming to look for
work.
• Tuition?
Legal Rights
• Sections 7–14
• Definition: Charter sections that protect personal
and procedural rights in the criminal justice
system
• Remedy: the way in which a wrongdoing is fixed
by the court or other judicial body.
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Section 7: Life, Liberty, Security of the Person
Section 8: Search and Seizure
Section 9: Detention or Imprisonment
Section 10: Arrest or Detention
Section 11: Criminal Proceedings
Section 12: Treatment or Punishment
Section 13: Self-Crimination
Section 14: Right to an Interpreter
• Life Liberty and Security – most controversial
– Present necessary evidence to the defence (R.
v. Stinchcombe, 1991)
– Abortion Laws (R. v. Morgentaler, 1998)
– Chaoulli v. Quebec, 2005 – failing to provide
public health care of a reasonable standard
within a reasonable time violated section 7
– Rodriguez v. British Columbia, 1993, CanLII 75
(SCC) – Case 90
• Search and Seizure
– Section 8, right to be secure against an
unreasonable search and seizure
– High school - random drug searches
– R. v. A.M., 2008
– R. v. Mann, 2004 – Case
– R. v. Tessling, 2004 - Case
• Detention
– Section 9 “everyone has a right not to be arbitrarily
detailed or imprisoned”
– Do you think it is reasonable for police officers to stop
drivers randomly to check for driving under the
influence of alcohol or drugs?
– Detention – reasonable limit on a person’s rights to
protect society ?
– R. v. Hufsky, 1988
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• Arrest
– Section 10, right to be informed/language; right to
consult a lawyer; and allows a court to determine if a
person was held in custody legally – lawful detention
– Anti-Terrorism legislation!
– Charkaoui v. Canada, 2007 – Case (balance
individual rights with national security)
• Rights on Being Charged with an Offence
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• Cruel and Unusual Treatment or
Punishment
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• Self-Incrimination and Interpreter Rights
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Looking Back – The Charter
Since 1982
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Equality Rights, Official
Languages, Minority
Language Education
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Rights
Section 15
Section 16 – 22
Section 23
Equality Rights
• Section 15 of the Charter
• Definition: Protection from discrimination
– Specific grounds for discrimination include:
race, ethnic origin, colour, religion, gender,
age, mental or physical disability, and (most
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recently) sexual orientation.
– A controversial equality issue in recent years
has been equal rights for same-sex couples.
– Andrews v. Law Society of BC, 1989
– Vriend v. Alberta, 1998
– M. v. H., 1999
Language Rights
• Sections 16–22 of the Charter
• Definition: protection of Canada's official
languages in all government institutions
– Canada's two official languages are English
and French. 90
– These sections guarantee that both
languages have equal importance in
government matters.
– Canadian laws must be printed in both
French and English.
Minority Language
• Section 23
– Guarantees rights for minority language
education. Canada official languages,
French and English.
– Only apply to Canadian citizen.
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– Education is a provincial matter
– Arsenault-Cameron v. Prince Edward Island,
2000 SCC 1 (CanLII) - Case
General
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Section 25 – 31
- aboriginal rights
- Multicultural heritage
- Rights and freedoms =
male/female
Aboriginal Rights
• Section 25 of the Charter guarantees the
existing rights of Aboriginal peoples (e.g.
treaty rights).
• Aboriginal issues are often argued in the
courts. Some of the more common issues:
– right to hunt and90fish
– land claims
– desire for self-government
• Courts are tasked with interpreting the
meaning of the law. Constitutional
protections for aboriginals are found in
section 35 of the Constitution Act, 1982.
Multicultural
• Section 27
• Recognizes the multicultural nature of
Canada.
• Ethnic backgrounds and have variety of
needs.
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• Courts and governments must consider
these varying cultural backgrounds at all
times.
Remedies
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Constitution Act 1982 (section 52)
Charter Section 24 - Enforcement
Enforcing The Charter
Section 52 of the Constitution Act, 1982
• This section provides the courts and
governments with these three remedies
if legislation/law is found to be
unconstitutional:
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1. Strike down – a court ruling that a law violates
one or more Charter rights and therefore is invalid.
2. Read down – a court ruling that a law violates one
or more Charter rights and part of it needs to be
changed or amended.
3. Read in – a court ruling that a law needs to be
changed or amended, but that the law is still
constitutional.
Infringed: broken or violated, as in an agreement or
right that is infringed.
Enforcing The Charter contd…
Section 24 of the Charter
• This section allows anyone who believes
their rights have been infringed to apply
to a court for a remedy.
• Infringed – violated
or broken
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• Remedy – a method for a person to
enforce his/her rights in court
– Evidence not to be submitted
Courts and the Legislature
• Governments are elected to pass and change laws
(federal/provincial/territorial)
• BNA, 1867 – courts decided who had the power to
enforce the laws/division of powers by level of
government, since the Charter, the courts also
decide whether or 90
not these laws or government
actions are unconstitutional.
• Our courts have the power to interpret these
laws and decide whether or not they are
constitutional (Do they violate the Charter?)
– Sometimes the courts have been accused of taking too
much power away from the elected legislatures.
– Judicial activism occurs when judges put their own views
and values into court judgments.
Issue:
• Do the courts have too much power
compared to legislatures?
• Page 66-67
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