POLS 1400 Midterm: 1400 MIDTERM REVIEW

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Chapter 19 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. Such rights and freedoms are in essential part of a democratic political
system and represent territory into which the government is not allowed to enter as it makes and
enforces public policy for society.
Charter of Rights and Freedoms created in 1982.
It is the task of the judiciary to determine if and when the government has encroached on these
Not only does the Charte potet ee Caadia’s idiidual ights ad feedos, it also has
affected the operation of many other aspects of the system.
Defining and Protecting Rights and Freedoms
Broken into four categories:
Political liberties (such as fundamental freedoms of speech, press, assembly, and religion)
Legal rights (such as the procedural rights of a person suspected or accused of committing a
ie, a liet eopassig that peso’s ight to legal ousel, a pesuptio of
innocence, bail, and a fair trial)
Equality rights (freedom from discrimination based on gender, race, religion, or age)
Economic rights (such as right to own property)
Political liberties, legal rights, and equality rights are almost universally supported in Canada and
are, therefore, embedded in the Charter. The last one, economic rights, is more controversial. It is
recognized in law and in the Canadian Bill of Rights, but it was not enshrined in the Charter.
Two principle methods to protect these rights:
British approach to make Parliament supreme but on the presumption that neither the
legislature nor the executive would infringe civil liberties, because both are held in check by
public opinion, tradition, the political culture, and self-restraint
Parliament could infringe upon these rights but the values are so deeply ingrained
that the people and politicians alike would never infringe them
Courts cannot overturn legislation in Britain (they do not have the power of judicial
review), but they do have a wide judicial discretion in the interpretation of laws
(many civil libertarian values have been introduced into law as canons of
Judicial precedents accumulated into the common law offer protection against
arbitrary government action
Rule of law every official act must be based on law
Even if laws are not written down, it does not mean that civil liberties did not exist
American approach to provide for a written statement of civil liberties (civil rights) in a
constitutional Bill of Rights
Derived in reaction to an imperial government that did encroach on colonial liberties
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If legislatio is passed o the eeutie takes atio that is felt to iolet a peso’s
rights, these acts can be challenged in courts (it is then up to the courts to
determine if rights as defined in the Constitution were infringed upon)
These courts do have the power of judicial review and can overturn offensive
legislation or acts
Neither system is close to perfection; both are designed only to restrict the actions of
governments (in most cases, bills and charters of rights do not extend to private,
itepesoal elatioships…these ae oeed i hua ights odes [fo eaple:
workplace discrimination]); each province and territory has a code (so does the federal
government) and they are enforced by human rights commissions through investigations,
conciliation, and adjudication of disputes
En Route to the Charter
Three Eras in protecting rights and freedoms:
Parliament supremacy Canada inherited the British system based on parliamentary
Canadians civil liberties depend on politicians voluntarily respecting them or
protecting them in legislation
Canadian situation was compiled by the adoption of federalism. Therefore, Canada
possessed two supreme legislatures (one in Ottawa and another in the provinces),
each operating within its own constitutional jurisdiction
Federalism allowed the courts to engage in judicial review in the sense of
invalidating federal and provincial legislation that violated the division of powers
Federalism also opened up the door to judicial review in the protection of rights and
freedoms (meaning, if any level of government infringed civil liberties, then courts
could strike down the law)
Because of this, even before there was a constitutional bill or charter of
rights, the Canadian courts were able to intervene to a limited extent to
overturn legislation that violated civil rights (most often took place at
provincial level)
Implied bill of rights since civil liberties were generally recognized in Britain, they
should also be applicable to Canadians
Most auses of ights ad feedos ee’t take to out, ad of those that ee,
most were dismissed
Three principle cases of judicial protection of such rights and freedoms before the
1938 Alberta Press Bill case freedom of the press
Alberta legislation allowed the government to order newspapers to
reveal the sources of unfavourable comment and gave it the right to
respond to itiis… outs foud this legislatio ialid eause it
infringed upon the federal criminal law power
1950s freedom of religion
Jehoah’s Witesses i Quee ee euied to otai peissio
from chief of police to distribute their literature on the sidewalk...
case was overturned by the federal criminal law power
1957 Padlock Law
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This law had given the premiere (Premiere Maurice Duplessis) and
the attorney general the power to padlock/bolt any building that
Duplessis considered was being used for the propagation of
ouis ad olsheis… ut eause these tes ee’t
defined well, it was used against opposition groups of any kind
Pre-1960s find executive actions to be contrary to the rule of law
Jehoah’s Witess ase… the peiee took action based not on law but on his
dislike of Jehoah’s Witesses he he pesoall aelled a tae oe’s liuo
Violations of civil liberties that did not also offend the division of powers or rule of
law gave the courts little discretion
Both federal and provincial politicians were occasionally guilty of violating civil
liberties and the courts could rarely be counted on to invalidate such actions
1960 enactment of the Canadian Bill of Rights by John Diefenbaker
Douet’s ai as to allo the outs to ialidate legislatio that the foud to
conflict with the Bill of Rights, but this aim was not clearly articulated (the courts
were never sure whether they had been given these powers or not)
Other gaps: only applied to the federal government, allow legislation to be passed
that overrode the bill, the bill could be amended in the routine way, and it was
superseded by the War Measures Act at the time that it was needed most
Only used once Drybones case of 1970
The bill was more useful in clarifying legal rights, for example the right to co unsel,
the right to an interpreter, and the right to a fair hearing
The Charter of Rights and Freedoms
Created after recognizing limitations and ambiguities of the Canadian Bill of Rights and wanting to
incorporate new kinds of rights into the Constitution. Several politicians, particularly Pierre
Trudeau, attempted to improve it.
Charter replaced the Bill of Rights. But it used much of the same language in the fundamental
freedoms section and legal rights section, it also included democratic, linguistic, mobility,
egalitarian, and limited Aboriginal rights.
Trudeau wanted to entrench official bilingualism and official minority-language education rights
across the count did this i effot to udeut Quee’s lai that it epeseted Feh
Canada). In other words, the individual rights of Canadians would be strengthened at the expense
of group rights.
To increase the allegiance of all citizens to the national government
Applies to both provincial and federal governments equally
Difficult to amend since it is entrenched into the Constitution
States clearly that the courts are to invalidate any government actions or legislation that are
in conflict with the provisions of the Charter
Rights articulated in Charter are not absolute ights ae sujet to suh easoale liits,
defied  la, as a e deostal justified i a fee ad deoati soiet s. 
Section 33 in areas of fundamental freedoms, legal rights, and equality rights,
either government level is allowed to pass legislation contrary to the Charter by
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