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Chapter 19

POLS 1400 Chapter Notes - Chapter 19: Parliamentary Sovereignty, Equal Protection Clause, Blood Transfusion

Political Science
Course Code
POLS 1400
Nanita Mohan

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CHAPER 19 The Charter of Rights and Freedoms
Constitution Act of 1867 was rather lacking in terms of identifying fundamental rights and
Rights and freedoms were entrenched in the constitution and elaborated on with the creation of
the charter in 1982.
Defining and protecting Rights and Freedoms
Rights and Freedoms are commonly classified into four categories:
Political Liberties
o Freedom of speech
o Freedom of press
o Freedom of assembly
o Freedom of religion
Legal rights
o Procedural rights of a person suspected or accused of committing a crime
o Liberty encompassing the persons right to legal council
o A presumption of innocence, bail and a fair trial
Equality Rights
o Freedom from discrimination based on gender, race, religion, or age
Economic rights
o Right to own property (this is protected in law but not enshrined in the charter)
Each province and territory in Canada has such a code (Human rights code), as does the federal
government, and they are enforced by human rights commissions through investigation,
conciliation and if needed, adjudication of disputes.
En Route to the Charter
A discussion of protecting rights and freedoms in Canada can be divided into three eras
o 1st parliamentary supremacy
The courts could rule that a law or action was an infringement
Implied bill of rights was utilized at the time (rarely and inconsistently used)
Multiple infringements on rights noted in this period of time (EG. Violations of
the rights of Jehoah Witess’ i Quee, Asia people reoked the right to ote
in BC, Aboriginals and women were targeted etc.)
Thus before 1960 both federal and provincial governments were occasionally
guilty of violating civil liberties.
This fact and the realization that that the courts could rarely be counted
on to invalidate such actions persuaded John Diefenbaker to enact the
Canadian Bills of Rights in 1960.
o The bill of rights inaugurated the second era in the protection of rights and freedoms
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The ordig of the ill as’t lear for the ourts to e ertai that they ere
to strike down infringements
Limited use of the bill of rights given the inarticulate distribution of power
It was better served as a document to clarify legal rights
Provinces occasionally violated civil liberties in the post 1960 era too but the bill
of rights was of even less assistance in these cases.
The Charter of Rights and Freedoms
o Third era of protecting rights happened when Trudeau recognized the limitations and
ambiguities of the Canadian Bill of Rights
Ironically trudeau enacted the war measures act in 1970 in Quebec
However, in 1982 with the creation of the Charter he fixed the problems
associated with the Bill of Rights
Charter is a stronger document than its predecessor (Bill of Rights)
o Broader scope
o Impacts federal and provincial levels
o Entrenched in the constitution
o States clearly the power of the courts and expectation that they strike down any action
that is to infringe on the rights of the people
Protects rights and freedoms within reasonable limits meaning that if an action or piece of
legislation is to come into effect and it infringes on the rights and freedoms to a reasonable
degree it is to be admissible.
Not-withstanding clause (law can be passed for 5 years and then become obsolete unless passed
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 be demonstrably justified in a free and
democratic society (Pg 468).
Oakes test was developed to test the reasonable limits clause
o criteria attached to the oakes test to test that the reasonable limits clause is justified:
It must be pressing and substantial
Means must be proportional to that objective
Limit must be rationally connected to the government objective
It should impair the right as little as is necessary in order to achieve the
Costs of the impairment must be proportional to the benefit
Fundamental Freedoms
Section2 lists the fundamental freedoms:
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find more resources at oneclass.com
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