soc209 - lc - The Charter - mon feb 27 2012
Charter 1982 - guaranteer of our rights.
- most important addition to constitutional law
- shift from legislative power to judicial power - that branch is now able to define laws
or think about laws in a way. - its not in the legislators law now.
- its a shift in power of govt
-SCC - places a huge budern on the Supreme court of Canada( SCC) duty to strick
down laws that does not conform.
- so judges now are sitting and deciding whether laws judicial or federal affends the
charter on some level. - we have packed some of these cases - but there a lot of decision
that are in flux becuase they were decided by narrow margins - its not about the
supreme couts but provincal courts can strike down.
- provincial courts can too - eg mandatory minimums for guns etc.
- where did we see this recently?
- gives us a common langauge on rights - how we talk or understand rights and it
redfines the way we advance legal things - how we can advance legal claims -how we
think abou rgihts - quite influential - cant really understate that or overstate that enough
- its an important document - in terms of stucrting our adnvace and sturctring our rights
it is very general in purpose - and the understanding is very general becusae things will
shift over time - there will be different cases that want different attention. - things
change over time. it is particularly general - this develops overtime. what it does cover
- vital force in molding the lives of Canadians" - Bertha Wilson -
section 1- limitation clause- the rights of the charter are not abosulte -and tell us how
rights can be superceded.
- in terms of imprisoning - send someone to prison - you are enfirinding on their right -
you put them on prison - that is under section 1 - that is osmething we understand - we
see these exceptions nad limitations clause.
- it is a reasonable limit in a free democratic society - that nderstnading that we have to
have a reasonable limit in a free democratic societ y- we are trying to aplying this in
vauge sound limitation is a specific test the S. 1 [OAKES Test] - it is very vague and
open by interpretation to the lower courts - this is the standard test that all the courts go
through if someting violates the charter******************
-limitation on your rights is okay if there is a pressing and substantial concern. -
limiting charter rights is acceptable if it deals with the pressing and substaning social
- (the response of the govt) proportional to the purpose of the law; i tmust adress some
kind of substantial concern.
- the law must limit law in a proportionate way. eg someone yelling fire and you all run
out madly - you are free to yell out fire but there is a reason why this yelling a limited
speech. for eg, hate speech 0 allowed to express your opnion but there is a aceapbelt
limit and concern of discrimination to limit that right of expression.
-a) in terms of proportional to the proprtion of the law - must be rationnaly connected!
but logically relate to the purpose of the law. * b) minimal impairment to them -if its individual. - minimal impairment possible - the
components of proportionality. - cant go voer the top and overcharge or iver imprison.
c) the purpose of the law must not be outwighed by the limit on the Charter right - as
you can see from the test .
s. 2- Some tough questions that the courts have to answer.
- relfectiong freedoms that mght of been set out before the charter.
- Freedom of religion -
- eg. blood transfusion - does this mean u can force a child to have a blood transfusion
if the parents religion doesnt believe in medical remedy? - wont die if we give him a
blood transfusion - the family refuses this but the state tries to help but family says: this
is offending my religion - should we be allowed to force that child to have a blood
transfusion? yes it violated the charter - but it was saved under section 1 - the oaks test
- justified to save the childs life not all rights that are there in the charter are automatic
- there are instances where exemptions are made.
2b) freedom of thought, belief - media, newspapers writes certian thigns to express
certain opnion -SCC said: is it important for self fulfillment?Yes.
- it is also important for particiaption -socially and politically - and allowing for the free
exhcnage of ideas* we dont ahve to limit your ability to exchange with others.
- What About...
hate speech? is it a form of expression? hate speech is allowed - allowing for an
exchange of ideas - but where it becomes uncomfrtable when it goes to section one
when there is a substantial concern. - eg Keegstra - key case when we think about hate
speech - court said: protectiong people and promiting tolerance is more important *
than the limitation on Keestras right to speak. - something that the charter allowes for
becomes the subjective test.
-Pornography? should that be allowed under hatte speech - form of a expression - it is a
form of expressoin - it is protected by section 2 - Butler decision - this is hwat it is
known as = but it can be limited if it degraed to women or promotes violcne to women
- we can limit this freedom of expression if its degrading to women or poromotes
- the right to assembly - what a lawfull assembly is? the right to form unions with other
poelpe - we have the right to belong in unions with other poeple -and the undersatnding
is these are importnat to our libertya nd in a democratic society - the fact that we are
able to argue about particular issues. - the understnading of central compents of
s. 3- 5
you right to vote, have the right to election every five years.
- Harper v Canada - Attorney general 2004
- presidnet of national citizens coalition - Know harper v a g
- challanging third part $150 000 3rd part spending limits - ther eis limit how much a
3rd party can spend during an election - SCC - essentaialy the limitation and spending is justified under section 1. -
understnading htere is a violation happpening it is justified under section 1.
- spending limits during the elections encouraged fariness - that it was encouraged by
having these spending limits. it also helps us have confidence then (the voters will have
this inthe election process by having these limits.)
in genral is called PJ - principles of fundamental jusitce.
- the legal rights - more keen on legla rights.
the principles of fundamental justice are in interesting compoenent of that.
- the rights of life, liberty, rights of a person.
- for something that is qualified of fundamental jsutice - the court said it must be a legal
1. the principle must be a legal principle.
2. the principle mus tbe vital to societal notions of justice.
3. the principle can be idntified withs oem precision
- the right to silence - you do have the right to remian silent.
- laws cannot be arbitrary or overly vague.
- you have a right to full disclosure - you have the right to know the case against you.
- self incrimination
in terms of thinking wahts not covered: any law that says that the state is acting in the
childs best interest- that is not a principlal of fundamental justice. that is particulary
vague tha tis why. - you can really define what it means to be in the chids best ineterst
- the state acting in the place of the parent - that is not really a legal principal courts
found - not sufficiently precise.
- when we think about laws - a lot of poeple said becuase we make things illegal
becuase they cause harm to society - the harm pricinple - the harm pricinple doesnt
need the 3 componenets set out by the court - not a principle of fundamental justice. not
a legal principle - very hard to define what harm means precisely.
- not really central to the notion of jsutice- there are certain things that are restrircted
that arent really harmful to society.