Unit #2

Would the Charter
of Rights and
Freedoms have any
application in April’s
complaint?

What is the
difference between
a right and a
privilege?
Right vs Freedom

RIGHT
 a legal, moral, or social entitlement
 What we can expect
 Ex. Right to be presumed innocent

FREEDOM
 Ability to go about your business without
interference from the government
 Ex. Freedom of speech
Evolution of Canada’s Rights and
Freedoms
1. CANADIAN BILL OF RIGHTS
 Drafted in response to horrendous human rights
abuses in WWII
 Recognized many rights and freedoms
 It was a federal statute
 Problems:
○ Easily changed because it did not have authority
over other statutes
○ Equality issues
Evolution of Canada’s Rights and
Freedoms
2. CANADIAN CHARTER OF RIGHTS AND
FREEDOMS
 Included in Constitution Act, 1982
 Entrenched our rights
○ Rights and freedoms can only be changed by an
amendment to the Constitution (so very difficult)
 Enforced by the Supreme Court
○ Judges will strike down laws that violate the
Charter
 Problems:
○ Written too broadly????
Lets look at some of the sections of the
Canadian Charter of Rights and
Freedoms
SECTION 1: REASONABLE LIMITS CLAUSE


Rights and freedoms outlined in the Charter
can be limited as long as the limits are
reasonable (justified)
Rights are NOT absolute
R v. Oakes
In 1982 David Oakes was convicted of unlawful
possession of narcotic for the purpose of
trafficking
 Appeal  Oakes argued that s. 8 of the
Narcotic Control Act, which placed the burden
of proof on the accused, violated the
presumption of innocence contained in s. 11(d)
of the Charter.
 Appeal court found that, s. 1 of the Charter,
seasonable limitations were justified

Oakes Test

Court agreed that “it may become
necessary to limit rights & freedoms in
certain circumstances.”

They established 4 criteria for determine
whether a right should be subject to
limits.
Oakes Test
Is the reason for limiting the Charter
important enough to override the
person’s right?
 Is the limit to the person’s right
reasonably and logically connected to
the objective of the legislation?
 Is the person’s right limited as little as
possible?
 Does the severity of the limitation
match the importance of the objective?


If you answer _YES_ to all of the
questions, then the limit on your
right/freedom is JUSTIFIED. If you
answer _NO_ to any of the questions,
then the limit on your right/freedoms is
_NOT justified.
R.I.D.E Program
Use the OAKES Test to determine if it is lawful.
 Under the R.I.D.E. program, the police are
stopping and detaining motorists arbitrarily
to investigate whether or not they might be
committing a criminal offence.
 Justice's of the Supreme Court agree that
the RIDE program is unlawful as they violate
your s. 9 Charter right, but s. 1 upholds the
rights of the police to do this.

In the charter package read Case 1 &
answer the question
Canadian Charter of Rights and
Freedoms
SECTION 33: NOTWITHSTANDING CLAUSE

Allows the federal and provincial
governments to pass laws that are exempt from
section 2 (fundamental freedoms) and 7-15
(legal & equality rights) in the Charter

Exemption lasts for 5 years, then must be
renewed

Ex. Quebec Exemption Clause (Sept 2013)






In charter package read Case 2 &
answer
the
following
questions:
Who was Ford?
Ford was on of 5 retailers challenging the Bill
What was the issue with Bill 101 and her store?
Business name was Les Lainages du Petit Mouton Enr, but sign said “Laine
Wool” Bill 101 required all signs to be in French only
Why did the two courts rule Bill 101 infringed on the rights guaranteed in the
Charter?
Freedom of expression included the ability to express in the language of
one’s choice.
How was the Quebec government able to apply a French only statute despite
the courts’ rulings?
By introducing Bill C-178, invoking the notwithstanding clause. Allowing the
original law concerning French only sings was allowed to stand for at
least five years.
The Quebec government after lengthy court battles decided to compromise in
1993. Why did the government do it in 1993 as compared to a different year?
Because it was five years later, therefore they would have lost
Explain: “The current legislation is vague in the wording and therefore open
to interpretation.”
Can allow for things to be taken in differently from person to person or
case to case.
Unit #2
Newspaper article- Naked Man

Is the man’s freedom of expression
being violated?

What kind of impact would there be in
society if the courts decide to strike
down nudity laws?

How do the courts balance the
individual’s rights with society’s rights?
Canadian Charter of Rights and
Freedoms
SECTION 2: FUNDAMENTAL FREEDOMS
(a) - Freedom of Religion
 You
have the right to:
 Entertain the religious beliefs you choose
 Declare those beliefs openly without fear
 Right not to have values imposed on us
(ex. no longer say the Lord’s Prayer in school)
Canadian Charter of Rights and
Freedoms
SECTION 2: FUNDAMENTAL FREEDOMS
(b) - Freedom of Expression
 Free
to think and believe what you want
– express through writing, speech,
painting, photography, etc.
 Freedom

of the press and other media
Freedom of Speech in Canada – Anti-Terrorist bill
Canadian Charter of Rights and
Freedoms
SECTION 2: FUNDAMENTAL FREEDOMS
(c) - Freedom of Peaceful Assembly
to gather peacefully – ex: political
demonstrations/friendly protests
 Freedom
Students protest increase tuition fees – not so peacefully
Canadian Charter of Rights and
Freedoms
SECTION 2: FUNDAMENTAL FREEDOMS
(d) – Freedom of Association
 Freedom
to connect with other people or
groups – ex: unions, political parties
Case 3: R. v. Big M Drug Mart Ltd. (1985)
Supreme Court of Canada
Questions:
 Explain why the Supreme Court of Canada
unanimously agreed the Lord’s Day Act violated the
Charter?
It was a Christian based and infringed upon the
freedom of religion
 The government attempted to apply section 1 of the
Charter – Reasonable Limits Clause – to justify the
law. What were the lawyers for the government
attempting to convey to the Supreme Court judges?
They believed that everyone accepts the need and
value of a universal day of rest, and it should just
be on the day that traditionally been accepted by
most Canadians.
Case 4: Iko Tyoke
Questions:
 Many could argue the request for cancellation of morning
exercise is not justifiable since only one student out of the entire
school claimed it infringed on the Freedom of Religion. What is
your opinion about this statement?

The school offered an alternative. Was this sufficient to
eliminate the infringement of the Freedom or Religion or did this
simply open doors to a human rights discrimination violation?

Suppose this situation took place at a Catholic school. Discuss
if this would be a different issue.

The Canadian National Anthem has been in controversy at
different times. It is predominantly Christian in principle – “God
keep our land…..” Most Canadians respect and honour the
playing of the National Anthem but shouldn’t the National
Anthem reflect the cultural diversity of our nation?
Case 5: Binhah - safety
Questions:
 Is this a reasonable limits application? On one hand,
there is the freedom of religion and on the other right to
be secured from danger. The company and the Safety
Commission must consider the well-being of the
employees. Do you think the dismissal is warranted and
legal on a constitutional basis?

In Ontario, any bicycle rider under the age of 16 (or 18
without parental permission) must wear a helmet as
prescribed by law. Some young Sikh boys wear turbans
in accordance with their religion. Is this law an
infringement of Religion? Apply the same concepts as
used in #1. Explain: “This might be a discrimination
issue for the Human Rights Commission.”
Case 6: Sikhs in court
Questions:
 Does discrimination on the basis of religion
exist in this situation? Use the reasonable limits
clause to fully justify your answer.

Brainstorm at least 2 other places where a Sikh
male may not be allowed to wear his kirpan.
Case 8: R. v. Butler, (1992) 1
S.C.R. 452
Questions:
 Do you believe that the legally obscene
material distributed by Butler and others is
harmful to society, particularly to women? Do
you feel that the reasonable limits clause
should apply? Explain.

Why are TV shows and movies allowed to
convey murder and other horrible acts?
Case example

In the 1990’s, people gathered to celebrate
(protected under freedom of peaceful assembly)
with other hockey fans (protected under freedom
of association) a Vancouver Canucks’ win during
the Stanley Cup hockey playoffs. However, when
the assembly turned into a riot in 2011, the
freedoms of others (such as those of
shopkeepers whose windows were broken and
of bystanders who felt a threat to their personal
safety) were compromised. The police had to
arrest some rioters who were then charged with
breaking the law. Freedoms are guaranteed only
to such reasonable limits as can be justified in a
free and democratic society.
Case 12 - Convoy

Would freedom of peaceful assembly
allow this action to be conducted legally
or would section 1 apply in this case?
Explain using specifics.
Case 13: Canada (Attorney General) v
Bedford, 2012 ONCA 186
Questions:
 What two laws were struck down by the Ontario
Court of Appeal and why?
The word “prostitution” – applies to s. 210 of
Criminal code & drivers and bodyguards would be
legal but not pimps, who are known to exploit sex
trade workers.
 What law wasn’t struck down by the ONCA and
why?
Openly solicit customers on the street
 What do you think will be the Supreme Court of
Canada will rule on each of the three laws?
Why?
Case 14: March 2001, Canada's
Anti-Gang Law
Questions:
 In your own words explain Bill C-95.
If you are in a gang and know of an indictable offence that
occurred, you will be liable and serve a minimum sentence
of 5 years in prison
 What is the main intention of Bill C-95?
To decrease illegal gang activity and discourage people
from joining.
 Critics argue although the intention of the bill is justifiable, it
may infringe on the Freedom of Association. Bill C-95 assumes
you are presumed guilty simply through association. This
violates one of Canada’s most fundamental rights of being
innocent until proven guilty. Do you think Bill C-95 is
constitutional and the government has the right to limit a
person’s freedom if the result may lead to a more secure place
for others? Discuss.
Unit #2
Canadian Charter of Rights and
Freedoms
SECTION 3-5: DEMOCRATIC RIGHTS
3 – Right to Vote
 Right
to vote in an election and run for
office
 Subject to reasonable restrictions such as age,
mental capacity, residence, and registration
4 – Election
 Opportunity to elect a new federal and
provincial government every five years except
under extraordinary circumstances – ex: war
In the running of the Election
campaign
Stephen Harper
Conservative
Tom Muclair Justin Trudeau
NDP
Liberal
Elizabeth May
Green
Gilles Duceppe
Bloc Quebecois
Canadian Charter of Rights and
Freedoms
SECTION 3-5: DEMOCRATIC RIGHTS
5 – Parliament & Legislative Assemblies
 Parliament
and legislative assemblies
must hold at least one session a year
 Provides an opportunity for both elected
members and the public to question
government actions and policy
Canadian Charter of Rights and
Freedoms
SECTION 6: MOBILITY RIGHTS

Concerns the rights of Canadian citizens to
move in and out of the country and
between provinces
 Ex. People are free to live here in Waterloo Region
and move to anywhere in Canada
In 1991, Richard Sauve, who was serving a life
sentence for first-degree murder, challenged
the Canada Elections Act arguing that s.51 c,
which denied the right to vote to all inmates
serving sentences, violated s. 3 (the right to
vote) and s. 15 (equality rights) of the Charter.
The Supreme Court needed to make a decision
on this matter.
Prisoner’s Voting Debate
Form groups of 6
 Separate into two teams of 3
 Side 1 – Prisoners should have the ability to
vote in elections
 Side 2 – Prisoners should NOT have the
ability to vote in elections

Unit #2
Canadian Charter of Rights and
Freedoms
SECTION 7-13: LEGAL RIGHTS
7 – Life, Liberty, & Security of the Person

Life - Right to be alive, free from government
torture and execution

Liberty –Free to act and choose as you want

Security – Protects mental state of the
individual
The life of abortion activist Henry Morgentaler
Assisted Suicide Issue in Canada
Canadian Charter of Rights and
Freedoms
SECTION 7-13: LEGAL RIGHTS
8 – Unreasonable Search & Seizure

Police must have a good reason for searching the
person, home, or belongings of an accused

The search must be conducted fairly

Police can only search for what they have
permission to search for
Canadian Charter of Rights and
Freedoms
SECTION 7-13: LEGAL RIGHTS
9 – Arbitrary Detention or Imprisonment

People cannot be held for questioning, arrested,
or kept in jail by the police without good reason

Arbitrary means randomly
Canadian Charter of Rights and
Freedoms
SECTION 7-13: LEGAL RIGHTS
10 – Rights While Under Arrest or Detention

Right to be told why you are being arrested (while
being arrested)

Right to be told that you may get the assistance of a
lawyer – legal counsel is available free of charge if
the accused cannot afford a lawyer
Canadian Charter of Rights and
Freedoms
SECTION 7-13: LEGAL RIGHTS
11 – Rights When Charged with a Criminal
Offence

Outlines several rules that protect anyone who has
been charged with an offence
 To be assumed innocent until proven guilty
 To be tried in court within a reasonable amount of
time
 To not be forced to testify at your own trial
 The right to trial by jury for serious charges
Canadian Charter of Rights and
Freedoms
SECTION 7-13: LEGAL RIGHTS
12 – Cruel and Unusual Treatment or Punishment

Governments cannot treat or punish individuals in an
unnecessarily harsh manner
 Ex. Death penalty not legal here in Canada under s.12
 In deciding what is “cruel” the court considers:
 The gravity of the offence
 The personal characteristics of the offender
 The particular circumstances of the case
Canadian Charter of Rights and
Freedoms
SECTION 7-13: LEGAL RIGHTS
13 – Rights of Witnesses in Court

Witnesses giving evidence in court cannot have
testimony used against them

Anyone who is hearing impaired or cannot
understand or speak the language used in court
has the right to an interpreter