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Canadian 3 - The Charter.docx

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Political Science
Political Science 2230E

Reading – Chapter 19 Defining and Protecting Rights and Freedoms  Rights and freedoms are commonly classified into 4 categories o Political liberties including the fundamental freeomds of speech, press, assembly and religion o Legal rights including the procedural rights of a person suspected or accused of committing a crime o Equality rights that is, freedom from discrimination on such bases as gender, race, religion or age. o Economic rights are a more controversial category.  They are not enshrined in the Charter.  Political system that value such rights and freedoms have adopted two principle methods to protect them. o British approach is to make Parliament supreme but on the presumption that neither the legislature nor the executive would infringe civil liberties.  Both are held in check by public opinion, traditions, political culture and self-restraint.  Courts do not have the power of judicial review in Britain they have wide judicial discretion.  Interpretation of laws and civil libertarian values have been introduced. o American approach is to provide for a written statement of civil liberties in a constitutional Bill of Rights  If legislation is passed or the executive takes action that is felt to violate the Bill of Rights, such acts can be challenged in court.  It is up to the courts to determine whether rights have been infringed upon or not.  Courts thus have the power of judicial review and can overturn offensive legislation or executive acts.  Both approaches are flawed and only focus on restricting government behavior o Discrimination on a private level is usually left to human rights codes. o Each province in Canada has such a code. The Charter of Rights and Freedoms  Pierre Trudeau attempted to improve the limitations and ambiguities of the Bill of Rights.  With the adoption of the Charter Rights and Freedoms he accomplished his goal. o The Charter replaced the Bill of Rights by using much of its language but also going beyond it to include democratic, linguistic, mobility and limited Aboriginal rights.  The charter is a lot stronger than its predecessor o Not only is it broader in scope but it also applies equally to both federal and provincial governments. 1  However, the rights articulated are not absolute o Section 1 indicates that such rights are subject to such reasonable limits, defined by the law, as can be demonstrably justified in a free democratic society. o In the areas of fundamental freedoms, legal rights and equality rights. Either level of government is allowed to pass legislation contrary to the charter by means of the notwithstanding clause.  The Reasonable Limits Clause o Section 1 of the Charter is often called the Reasonable Limits Clause o The SCC has made extensive use of section 1 and developed a test in interpreting the limits that can be demonstrably justified in a free and democratic society o These outlines were formed during the Oakes case and are now called the Oakes Test  The objective in limiting a right must be pressing and substantial  The 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 objective  Cost of the impairment must be proportional to the benefit.  Fundamental Freedoms o Section 2 of the Charter listes the following fundamental freedoms  Freedom of conscience and relgion  Freedom of thought, belief, opinion and expressing  Including freedom of the press and other media  Freedom of peaceful assembly  Freedom of association  Democratic Rights o In sections 3 -5, the Charter guarentees that every citizen of Canada has the right to vote in federal and provincial elections.  No parliament can continue for more than 5 years except for in times of war.  Each Parliament must sit at least once every year.  Mobility Rights o Every citizen of Canada has the right to enter, remain in and leave Canada, and every citizen or permenant resident has the right to take up residence and pursue the gaining of a livelihood in any province o These rights were included in the charter because of Pierre Trudeaus concern that some provinces were restricting entry of residents of other provinces.  Legal Rights o Contained in sections 7 – 14 2 o Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice – section 7 o Section 8 – the right to be secure against unreasonable search and seizure o Section 9 – the right not to be arbitrarily detained or imprisoned o Section 10 – on arrest or detention everyone has the right to be informed promptly of the reasons and the right to contact a lawyer without delay o Section 11 – includes a variety of rights available to a person charged with an offence o Section 14 – a party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.  Equality Rights o Contained in section 15  Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. Official Languages of Canada  Sections 16 – 22 of the Charter guarantee that certain federal and New Brunswick government agencies will operate on a bilingual bases.  Minority Language Education Rights o Section 23 deals with minority language education rights and some would argue that they were the part of the charter with which Pierre Trudeau was most concerned o Requires provinces to provide Anglophone and francophone minorities with education in their own language. o Drafted so that it would purposefully conflict with the “Quebec Clause”  Enforcement o Section 24 makes clear that the courts have the power to interpret the Charter and to invalidate laws or government actions that conflict with it. o The charter does not put a ban on illegally obtained evidence but the SCC laid down the basis for interpreting this section in the Collins case  Evidence should be excluded if it would prejudice the fairness of the trial.  The obtaining of the evidence violates the Charter – more serious  But, if excluding the evidence would put the judicial system into disrepute, the evidence should not be excluded.  General Provisions o Sections 25 – 30 relate to specific groups in society o Section 25 – the rights and freedoms in the Charter should not be construed so as to abrogate or derogate from any Aboriginal, 3 treaty, or other rights or freedoms that pertain to the Aboriginal peoples of Canada o Section 27 – the charter shall be interpreted in a manner consistent with the preservation and enhancement of th emulticultural heritage of the Canadians o Section 28 – notwithstanding anything in the charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.  Application of the Charter o Section 32 clarifies that the Charter applies to the parliament anf government of Canada and to the legislature and government of each province.  By implication it also applies to the municipal level of government. o All legislation in Canada must be consistent with the Charter. o The charter is not intended to apply to the private sector but certain institutions occupy an ambiguous position.  The courts interpret the Charter but it is not clear whether their actions are governed by it.  The Notwithstanding Clause o Section 33 – Parliament or legislatures make exempt laws from three parts of the Charter  Fundamental freedoms  Legal rights  Equality rights o A federal or provincial legislature merely has to expressly declare in a statute that the act or provision thereof shall operate notwithstanding a specific provision of the Charter. Lecture – October 2, 2012 To Whom or What Does the Charter Apply?  Section 32.1 – The charter applies to the Parliament and government of Canada and the legislature and government of each province. o Citizens only have charter rights in order to restrict government and legislature power. o Does not apply to private situations such as a boss vs employee, unless your employee is the government. o No charter rights against a private entity What does S1 of the Charter Provide? How has the Judiciary interpreted S1?  S1 – The Reasonable Limits Clause o 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.  Section 1 makes clear that the rights of Canadians are not guaranteed.  Legislatures, rather federal or provincial, can place limits on citizen rights when there is a more pressing issue at hand.  Limits put on rights must be reasonable 4 o Prescribed by law as can be demonstrated by a free and democratic society.  The court looks at S1 and determines whether or not government legislation that limits charter rights is within a reasonable limit. o There is nothing that explicitly states what is a reasonable limit on a Charter right.  Court initially didn’t know what to do so they avoided S1 analysis at all. o When they did strike it down, they just said we are sure it is not a reasonable limit but we don’t know why  1986 – R v Oakes – decision of the SCC. o Court finally said how it would go about determining whether a limit on a right was reasonable o The Oakes Test – reasonable limits framework  Has a Charter right been infringed?  Definitional stage  Burden of proof (onus) is on the claimant  If no, litigation ends and the claimant loses.  If yes, move on to step 2  Is the right being infringed a “reasonable limit”?  Burden of proof (onus) shifts to government  Does the rights limit constitute a reasonable limit pursuant to s1.  Legislative objective – court asks is there a pressing and substantive legislative objective to limit rights.  If yes, move on  Reasonableness  Are the means that the government has chosen to implement its legislative objective reasonable and demonstrably justified in a free and democratic society.  Proportionality  Was there a better way that the legislator in question could have drafted this legislation? o Same objective but by harming l
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