Pols 2300: Chapter 6: Rights and Freedoms
← In reality, no right or freedom is absolute, there is two reasons:
ONE : rights and freedoms may collide necessitating some compromise.
← Holmes established the ‘clear and danger test’, according to which freedom
of expression could legitimately be curtailed when it posed an unmistakable and
immediate danger to others. Falsely shouting ‘Fire’ in a crowded theatre obviously
endangers the safety of those in the room.
TWO: because it is impractical. Common sense suggests that there are limits to
how far and in what circumstances the principles of linguistic equality and minority
rights should apply.
Section 1 of the charter states that these rights and freedoms are subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society, and section 33(1) enables either parliament or a provincial
legislature to declare that a particular law or provision of a law shall operate even if
it violates rights or freedoms. Together, section 1 and 33 operate to maintain some
measure of parliamentary supremacy over the courts and the charter.
Rights and Freedoms, are therefore, water tight compartments in reality. Rights for
those individuals and group entitlements that are considered so fundamental to
human dignity that they receive special protection under the law and usually under
the constitution of a country.
Freedoms involve an individuals liberty to do or believe certain things without
restraint by government. Whereas the defense of rights often requires some
government action, the protection of freedoms requires that government refrain
from interfering in matters. Rights suggest an active role for government, freedoms
a limited one.
Civil liberties or civil rights are terms sometimes used to refer to all the basic rights
and freedoms of citizens. Under the Universal Declaration of Human Rights the term
human rights has become the more commonly used designation for this bundle of
rights and freedoms, included among these are the following: • Political rights/fundamental freedoms: include the freedom of association,
assembly, and expression.
• Democratic rights, among these are the right to vote
• Legal rights, the essentially are procedural rights intended to ensure the
fair and equal treatment of individuals under the law. They include inter
alia the right to due process of law.
• Economic rights, they include the right to own property.
• Equality Rights, every persons right to equal protection of the laws of the
proscribed bases of race, religion, age, gender, and ethnicity, Canada’s
charter also includes mental and physical disability and sexual orientation
← Language rights, Environmental rights, and other group rights such as
religious minorities and native peoples may also be protected by the law. Some
argue that social rights or entitlements including the right to a job, economic
security should also have a status entrenched in our constitutional rights.
← This has produced some curious distortions, as the protagonists to a political
conflict attempt to fit their claims into categories available under the Charter and
the interpretative tendencies of judges. Michael Mandel refers to this process as the
legalization of politics. Which inevitably favors established interests and serves to
reinforce that status quo because of what he and other critics claim to be biases
built into the law and the legal/judicial profession. But the legalization of politics
does not express strongly enough the deformation of politics that the Charter has
encouraged. This deformation is not limited to economic conflicts. The court party
have been far more successful than so called establishment interests in using the
Charter to win political victories.
← The Origins and Meanings of Rights
← Rights come from political struggles, a claim made by an individual or group
will be expressed as a right only when it is denied or placed in jeopardy by the
words or actions of some other party.
← ← Political struggle is a necessary condition for rights claims to be recognized
as legitimate a rights claim must be successfully linked to one or more of a society’s
fundamental values. These fundamental values operate as limits on rights
discourse. For instance, abortion those who argue to abort her pregnancy when she
chooses have often linked this rights claim to individual freedom of choice, a
fundamental value in liberal-democratic society.
← Behind these rights, rests one or more fundamental values, such as the
equality of human beings the autonomy of the individual, and most importantly the
nature of the good society.
← But there may be unintended consequences to fitting a groups objectives into
the available framework of rights discourse and the concepts and interpretations
that the legal system provides. First the issue may be misdefined law is only one of
the possible means through which such matters as gender relations, energy
consumption, lifestyles, and many other issues may be regulated. They may also be
regulated by social norms, by institutions such as the family, churches, the media,
and schools and by processes such as the market.
← But reliance on the law may not always be the beast solution from the
standpoint of efficiency, fairness, durability, general public satisfaction, or other
criteria that we might consider important.
← Rights and Their Protection
During the 1980 debate critics of en entrenched charter of rights warned that
entrenchment would lead to the Americanization of Canadian Politics, which it has.
The Americanization has two main aspects:
One involves a more prominent policy role for unelected judges and a related
decline in the status of elected legislatures. The other is an increase in recourse to
the courts to solve political disputes. Some of those who opposed entrenched rights
argued that rights and freedoms are better protected by elected legislatures. By
‘better’ they meant that the decisions of electoral politicians are more likely to
correspond with the sentiments of citizens. The difference between these two positions is over how best to protect rights.
Those who advocate the American model prefer to put their faith in the Constitution
and the judges who interpreted it. Those who prefer the British model of
parliamentary supremacy are more dubious about judge made law and more
inclined to place their trust in the prudence and democratic responsiveness of
The Pre-Charter Era: 1867-1981
Rights issues occupied a distinctly marginal place in Canadian political science and
even in legal circles until the middle of the twentieth century. The most important
was federalism. The Constitution Act, 1867 contains very few references to the
rights and freedoms of Canadians. It does, however include a very detailed
catalogue of the rights of governments i.e. the legislative and fiscal powers of
Ottawa and the provinces. Throughout most of Canada’s history issues that clearly
involved the protection of rights and freedoms were dealt with by the courts as
federalism questions. To have a chance at success, therefore rights claims had to
be packaged in the constitutional categories of federalism.
For instance the case of Saumur v. City of Quebec, 1953 the city passed a bylaw
forbidding distribution in the streets of any printed material without the prior
consent of the Chief of Police. Four of the five justices found the bylaw was ultra
vires, beyond the legal authority of the government in question
Federalism was not the only factor responsible for the relatively low profile of rights
issues until well into the 20 century. The feeling most informed Canadians had was
probably that rights were best protected by legislatures, the common law. But the
increasing doubts about the adequacy of these guarantees were being expressed
during the 1940s and 1950s.
Corry and Hodgetts agreed arguing that the protections provided under British
parliamentary government were not sufficient in a young country facing the
challenge of absorbing large numbers of persons in diverse ethnic backgrounds. The
solution, they argued was a bill of rights that would be entrenched in the
Constitution. A constitutional bill of rights would affect the powers of both Ottawa and the
provinces and, would therefore require provincial consent. It was clear that some of
the provinces would oppose entrenchment. Consequently, the conservative
government chose to introduce the bill of rights as a statue requiring only the
approval of the House of Commons and the Senate. The Canadian Bill of rights
became law on 10 August 1960.
Justice Ritchie declared that the Canadian bill of rights is not concerned with human
rights and fundamental freedoms in any abstract sense but rather with such rights
and freedoms as they existed in Canada immediately before the statue was
Joseph Drybones was an Indian convicted under section 94(b) of the Indian act,
Drybones lawyer argued that it conflicted with the Canadian Bill of rights guarantee
of equality before the law subjecting Indians to criminal sanctions that other people
were not exposed to.
It appeared therefore that not only could the Bill of Rights not be used to strike
down conflicting federal legislation at least laws on the books before 1960 it did not
take precedence over established rules of the common law.
Before passage of the Charter the only rights entrenched in Canada’s constitution
were associated with religion and language. Section 93 of the Constitution Act,
1867 declares that the educational rights of denominational minorities may not be
diminished from what they were when a province entered confederation. The major
test of section 93 involved the Manitoba Public Schools Act, this law eliminated the
Catholic and Protestant schools that has existed in the province and replaced them
with a single public school system. This the court decided, violated the spirit if not
the strict letter of section 133
Life in the Charter Era It is probably fair to say that the changes generated by the Charter have far
exceeded the expectations of all. In 2005 about one fifth of the 58 rulings handed
down by the Supreme Court involved constitutional matters based on the Charter.
In terms of quality, the change produced by the charter has been no less
pronounced. The previous pattern of deciding rights issues as federalism cases,
asking only whether a government was transgressing the jurisdictional turf of the
other level of government, has been abandoned. Rights issues are now dealt with
head on, emboldened by the Charters unambiguous declarations that the
Constitution is the supreme law of Canada.
Reasonable Limits and the Charter
The courts are invited to exercise self-restraint commonly called judicial restraint,
by the opening words of the charter. Section 1 declares the guarantees set forth in
the charter shall be subject only to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society.
Reasonable limits were established as a test in the case of The Queen vs. Oakes
this test asks whether a governments objective in limiting a right is of sufficient
importance to warrant such as encroachment. The extent of limitation to warrant
such an encroachment. The extent of the limitation is proportionate to the
importance of the governments objective. In order to satisfy this second criteria, a
limitation must meet three conditions:
1) it must be rationally connected to the governments objective
2) it should impair the right in question as little as is necessary to
meet the governments objective
3) the harm done to rights by a limitation must not exceed the
good it accomplishes
← Since Oakes, the courts have been reluctant to question the ends associated
with the laws and regulations limiting rights. But they have not been shy about
using the second part o