APPLYING THE CHARTER
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What would society be like if we were allowed
to do and say anything we like?
Irony– there are mechanisms in place to ensure
and protect your rights and freedoms AND
there are mechanisms which restrict those same
rights and freedoms
Section 1- Referred to as the reasonable limits clause
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“Charter of Rights and Freedoms guarantees rights
and freedoms set out in it subject to such reasonable
limits prescribed by law as can be demonstrably
justified in a free and democratic society.”
Read case study R. v. Oakes
R. v Oakes
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Accused claimed reverse onus provision violated his
rights to be presumed innocent until proven guilty
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Courts decide if a law is sufficiently important to warrant
overriding a right or freedom
1) Court will ask if the law relates to societal concerns which are
pressing and substantial in a democratic society. IF YES, COURT
PROCEEDS TO APPLY PROPORTIONALITY TEST
2) Proportionality Test
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Court must determine if limitations on rights satisfy proportionality test
(weighing the interests of society against those of individuals and groups)
3 Parts
a) Is there a rational connection between the limitation of rights
and objective of the legislation?
b) Does the limitation impair rights or freedoms as little as
possible?
c) Are the effects of the limitation proportional to the objective?
Section 33 (1)
- Referred to as the “notwithstanding clause”
- Section allowed federal and provincial
governments to override some of the rights and
freedoms in the Charter
- Allows governments to pass legislation that is
inconsistent with the rights set out in s. 2
(Fundamental Freedoms) and ss. 7 to 15 (Legal
and Equality Rights)