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Political Science
Political Science 2230E
Prof Dyck

Chapter 19: The Charter of Rights and Freedoms December-01-12 7:50 PM  Civil Liberties: consist of rights and freedoms that individuals enjoy beyond the reach of the government or the state o Such rights and freedoms are an integral 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 a society Defining and Protecting Rights and Freedoms  Rights and freedoms are commonly classified into four categories: 1. Political Liberties: including the fundamental freedoms of speech, press, assembly, and religion 2. 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 fair trial 3. Equality Rights: freedom from discrimination on such bases as gender, race, religion, or age 4. Economic Rights: controversial, although the right to own property, for example, is recognized in law as well as in the Canadian Bill of Rights, it was not enshrined in the Charter  Rule of Law: requires that every official act be based on law  Each province and territory in Canada has such a code, as does the federal government, and they are enforced by human rights commissions through investigation, conciliation and it necessary, adjudication of disputes En Route To The Charter  A discussion of protecting rights and freedoms in Canada can be divided into three eras: 1. Canada inherited the British system based on parliamentary restraint with Parliamentary Supremacy  Canadians' civil liberties depended on politicians' voluntarily respecting them or protecting them in legislation  The Canadian situation was complicated by the adoption of federalism  Hence, Canada possessed two supreme legislation, 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 or provincial legislation that violated the division of power  Federalism opened the door to judicial review in the protection of rights and freedoms  That is, if the courts could show that either level of government infringed civil liberties in the process of exceeding its jurisdiction in terms of the division of powers, then the courts could strike down the law  1867 Constitution Act, Canada's desire to have "a constitution similar in principle to that of Great Britain", civil liberties recognized in Britain as should be applicable in Canada  This interpretation sometimes called an "implied bill of rights" would have allowed the courts to go beyond the division of powers in striking down legislation that violated rights and freedoms, but it was rarely and inconsistently applied  Abuses of rights and freedoms were never taken to court, and if did were dismissed however three principle cases of judicial protection of rights and freedoms in the period before 1960 can be cited  In 1957, the Supreme Court disposed of Premier Maurice Duplessis's Padlock Law  This law had given the premier and attorney general the power to padlock any building that Duplessis considered was being used for the propagation of communism and bolshevism, but having left these terms undefined, it was used against opposition groups of any kind 2. Another means of protecting rights and freedoms even in the pre-1960 period was to find executive actions to be contrary to the rule of law  Violations of civil liberties that did not also offend the division of powers or rule of law gave courts little discretion  Thus before 1960, both federal and provincial politicians were guilty of violating civil liberties  This fact and the realization that the courts could rarely be counted on to invalidate such actions persuaded John Diefenbaker to enact the Canadian Bill of Rights in 1960  The Bill of Rights therefore inaugurated the second era in the protection of rights and freedoms in Canada  The document's apparent aim was to allow the courts to invalidate legislation that they found to conflict with the Bill of Rights, aim was not clearly articulated, courts were never completely certain if they had been given this power or not  Applied only to the federal government not to the provinces; allowed legislation to be passed that overrode the bill etc., 3. Provinces occasionally violated civil liberties in the post-1960 period too, but the Bill of Rights was of even less assistance in these cases The Charter of Rights and Freedoms  Pierre Trudeau, attempted to improve the Bill of Rights o He invoked the War Measures Act in 1970 and used it not only to fight the terrorists FLQ but also to encroach on the freedom of speech of innocent, non-violent Quebec separatists o Finally in 1982 with the adoption of the Charter of Rights and Freedoms part of the Constitution Act 1982 he accomplished his objective  Wanted to remedy the deficiencies of the Bill of Rights  Determined to entrench official bilingualism  Official minority-language education rights across the country in an effort to undercut Quebec's claim that it represented French Canada  The charter would also serve to increase the allegiance of all citizens to the national government o 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 o Section 1: indicates that such rights are subject to "such reasonable limits, defined by law, as can be demonstrably justified in a free and democratic society"  The courts 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 o Either level of government is allowed to pass legislation contrary to the Charter by means of the notwithstanding clause section 33  Such a bill can be exempted from the provisions of the Charter only for a five- year period after which it becomes inoperative if not re-passed for another five years The 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"  In interpreting the limits that can be "demonstrably justified...." the court developed guidelines in the Oakes case, which come to be called Oakes Test: 1. The objective of the government in limiting a right must be pressing and substantial 2. The means must b
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