chapter 19 charter.docx

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University of Toronto Scarborough
Political Science
Jennifer Levine

Chapter 19: the charter of rights and freedoms Defining and protecting rights and freedoms  Rights and freedoms are commonly classified into four categories: o The first relates to political liberties, including the fundamental freedoms of speech, press, assembly, and religion o 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 o A third aspect involves equality rights – that is, freedom from discrimination on such bases as gender, race, religion or age o The fourth category, economic rights, is a bit controversial En route to the charter  A discussion of protecting rights and freedoms in Canada can be divided into three eras  In the first, Canada inherited the British system based on parliamentary restrain within parliamentary supremacy  Even before the adopt of a constitutional bill, or charter of rights, the Canadian courts were able to intervene to a limited extent to overturn legislation that violated such rights  Many violations occurred at the provincial level, but the courts were able to strike most of them down  So that was one way of protecting rights and freedoms  John Diefenbaker enacted the Canadian bill of rights in 1960  The document’s apparent aim was to allow the courts to invalidate legislation that they found to conflict with the bill of rights, but if so this aim was not clearly articulated  The bill could also be superseded by the war measures act  The courts made very limited use of the bill of rights The charter of rights and freedoms  Recognizing the limitations and ambiguities of the Canadian bill of rights, and wanting to incorporate new kinds of rights into the constitution, many politicians attempted to improve it  Finally in 1982, with the adoption of the charter of rights and freedoms, part of the constitution act, 1982 the objective was accomplished  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  The charter is generally a much stronger document than its predecessor  Besides being broader in scope, the charter applies equally to both federal and provincial governments, and being entrenched into the constitution, it is difficult to amend  It states very clearly, that the courts are to invalidate any government actions or legislation that they feel are in conflict with the provisions of the charter  However the rights articulated in the charter are not absolute  The courts, as stated in section 1, are thus allowed to find that although a piece of legislation does violate certain rights, it is still acceptable according to their definition of reasonable limits The following are all the sections and shit of the charter!! (i have to know all this) The reasonable limits clause  Section 1 is often called the reasonable limits clause and reads as follows: o The Canadian charter of rights and freedoms gurantees 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  The supreme court has made much use of section 1, upholding many laws that were considered to be in violation of charter rights but that were saved by being reasonable limits on them  In interpreting the limits that can be “demonstrably justified in a free and democratic society”, the court developed guidelines in the oakes case, which has come to be called the oakes test  First, the objective of the government in limiting a right must be pressing and substantial, second, the means must be proportional to that objective.  Three criteria are attached to the second point: o The limit must be rationally connected to the government objective o It should impair the right as little as necessary in order to achieve the objective o And the costs of the impairment to the right must be proportional to their benefits  On page 496 theres a good example of how this is done(sharpe’s case) Fundamental freedoms  Section 2 lists the following fundamental freedoms: o Freedom of conscience and religion o Freedom of thought, belief, opinion and expression, indlucing freedom of the press and other media of communication o Freedom of peaceful assembly o And freedom of association Freedom of religion  Pretty much exactly what it says. Remember that the lords day act was struck down because it clearly related to the Christian Sabbath and discriminated against other religions Freedom of expression  The freedom of expression included not only the freedom to express ideas but also the freedom to choose the language in which to express them  A portrayal of explicit sex that is neither violent nor degrading is generally acceptable unless it depicts children Freedom of peaceful assembly and association  Again basically what it says Democratic rights  Under democratic rights, in sections 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 times of real or apprehended war; and that each parliament must sit down at least once every year  All prisoners are allowed to vote 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 pursure the gaining of a livelihood in any province  However, laws providing for reasonable residency requirements for receiving public services are acceptable, as are laws that give preference to local residents if the unemployment rate in that province is higher than the national rate Legal rights  Legal rights are contained in sections 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 accor
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