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
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
o Discrimination on a private level is usually left to human rights
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
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
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
The means must be proportional to that objective
Limit must be rationally connected to the
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
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
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.
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
o These rights were included in the charter because of Pierre
Trudeaus concern that some provinces were restricting entry of
residents of other provinces.
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
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
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
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
Evidence should be excluded if it would prejudice the
fairness of the trial.
The obtaining of the evidence violates the Charter – more
But, if excluding the evidence would put the judicial system
into disrepute, the evidence should not be excluded.
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
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
By implication it also applies to the municipal level of
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
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
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
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?
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
Are the means that the government has chosen to
implement its legislative objective reasonable and
demonstrably justified in a free and democratic
Was there a better way that the legislator in
question could have drafted this legislation?
o Same objective but by harming l