Class Notes (839,561)
Canada (511,396)
POLS 1400 (219)
Nanita Mohan (163)
Lecture 6

Week 6.docx

7 Pages

Political Science
Course Code
POLS 1400
Nanita Mohan

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The Charter of Rights and Freedoms Civil liberties consist of rights and freedoms that individuals enjoy beyond the reach of the government or the state. Although many such civil liberties have always existed in Canada, they were constitutionalized and enlarged upon in 1982 in the form of the charter of rights and freedoms, and it is increasingly the task of the judiciary to determine if and when governments have encroached on these rights. The charter has had a profound influence on the Canadian political system. Differing and protecting rights and freedoms: Rights and freedoms are commonly classified into four categories. The first relates to political liberties, including the fundamental freedoms of speech, press, assembly, and religion. The second, legal rights, includes the procedural rights of a person suspected or accused of committing a crime, a liberty encompassing that person’s right to legal counsel, a presumption of innocence, bail, and a fair trial. The third aspect involves equality rights that is, freedom from discrimination on such bases as gender, race, religion, or age. The fourth category, economic rights, is more controversial. Although the right to own property, for example, is recognized in law as well as in the Canadian Bill of Rights. The British approach is to make parliament supreme but on the presumption that neither the legislature nor the executive would infringe civil liberties. Although the courts cannot overturn legislation in Britain – that is, they do not have power of judicial review – they have wide judicial discretion in the interpretation of laws, and many civil libertarian values have been introduced into the law as canons of interpretation. The rule of law requires that every official act be based on law. EN route to the charter: In the first, Canada inherited the British system based on parliamentary restraint which parliamentary supremacy. Thus, even before the adoption of a constitutional bill or charter rights, the Canadian courts were able to intervene to a limited extent to overturn legislation that violated such rights. This interpretation, sometimes called an implied bill of rights, would have allowed the court to go beyond the division of powers in striking down legislation that violated rights and freedoms, but it was rarely and inconsistently applied. Although the federal government was generally more sensitive to rights and freedoms than the provinces were, its record left much to be desired, especially in the case of Aboriginals, women, radical speech, and minorities of various kinds, including its treatment of citizens of certain ethno cultural origins during the two world wars. John Diefenbaker enacts the Canadian Bill of Rights in 1960. The bill rights therefore inaugurated the second era in the protection of rights and freedoms in Canada. It is allowed legislation to be passed that overrode the bill, as long as this was acknowledged (a notwithstanding clause) superseded by the war measures act, at the every time when it might be needed most. The charter if rights and freedoms: Trudeau invoked the war measures act in 1970. Finally, in 1982, with the adoption of the Charter of Rights and Freedoms, part of the Constitution Act, 1982, he accomplished his objective. The charter essentially replaced the bill of rights, using much of its language in the sections on fundamental freedoms and legal rights, but going beyond it to include democratic, linguistic, mobility, egalitarian, and limited aboriginal rights. He was also determined to entrench official bilingualism, as well as official minority-language education rights. The charter applied equally to both federal and provincial government. However, the rights articulated in the Charter are not absolute. In the first section, it indicated that such rights are subject to “such reasonable limits, defined by law, as can be demonstrably justified in a free and democratic society.” Second, in the areas of fundamental freedoms, legal rights, and equality rights, rather level of government is allowed to pass legislation contrary to the Charter by means of the notwithstanding clause, section 33. The reasonable Limits Clause: Section 1 is often called the reasonable limits clause and reads as follows: 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 demonstrably justified in a free and democratic society. The court developed guidelines in the Oakes case, which have come to be called the Oakes test. First, the objective of the government is limiting a right must be pressing and substantial; second, the means must be proportional to that objective. Three criteria are attached to this second point: the limit must be rationally connected to the government objective; it should impair the right as little as is necessary in order to achieve the objective’ and the cost of the impairment to the right must be proportional to their benefits. It was upheld as a reasonable limit on that Charter right because: 1) The objective of the law criminalizing the possession of child pornography was pressing and substantial 2) The means chosen by Parliament were rationally connected to the objective 3) The law represented a minimal impairment of the charter right by allowing minor and reasonable exception 4) The benefits of prohibiting such materials outweighed any costs Fundamental freedoms: Section 2 lists the following fundamental freedoms: a) Freedom of conscience and religion b) Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication c) Freedom of peaceful assembly d) Freedom of association Democratic rights Democratic rights in section 3 to 5, the charter guarantees that every citizen of Canada has the right to vote in federal and provincial elections; that no Parliament can continue for more than five years from the previous election, except in time of real or apprehended war, invasion, or insurrection; and that each Parliament must sit at least once every year. In 1993 the Supreme Court agreed with the Federal Court of Canada that denying prisoners the right to vote violated section 3. In the 1989 Dixon case in British Columbia, the map was disallowed because electoral boundaries did not approach “equality of voting power”. The electoral map systematically overrepresented rural voters, a majority of the Court decided that they would not insist on greater equality in the size of constituencies because “effective representation” had been achieved. The Supreme Court argued that smaller parties serve a purpose in the electoral process, even if they are unlikely to win, and the law was eventually amended to allow the registration of a party with only a single candidate. Mobility Rights: Under section 6, mobility rights, every citizen of Canada has the right to enter, remain in, and leave Canada, and every citizen or permanent resident has the right to take up residence and pursue the gaining of a livelihood in any province. Legal Rights: Legal rights are contained in section 7 to 14. In section 7, everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. “Security of the person” was used as the main basis for throwing out the abortion provision of the Criminal Code in the famous Morgentaler case in 1988. In the 1999 Dobson case, the Court ruled that a woman could not be sued for having harmed her fetus during pregnancy. Canada has had two high-profile euthanasia or mercy- killing cases. In the first, Sue Rodriguez tried to persuade the Court that since she was dying of Lou Gehrig’s disease, security of the person should provide her with the right to an assisted suicide. But the majority ruled against her. Robert Latimer took the life of his daughter, who had severe disabilities, because he could not bear to see her in such pain, the Supreme Court unanimously upheld the provisions of the Criminal code with respect to murder and refused to recognize this as a special case. In 2005 Chaulli case, the question whether the waiting times characteristic of the public system jeopardized the life, health, and psychological well-being of Canadians. Security of the per
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