Canadian Charter of Rights and Canadian Charter of Rights and FreedomsFreedoms

Supreme Court is guardianSupreme Court is guardian Anyone can challenge gov’t in court Anyone can challenge gov’t in court

if their rights or freedoms have been if their rights or freedoms have been infringed (Section 24)infringed (Section 24)

If Charter violated, maybe exclude If Charter violated, maybe exclude criminal evidencecriminal evidence

Canadian Charter of Rights and Canadian Charter of Rights and FreedomsFreedoms

When handing down a judgment, the court When handing down a judgment, the court (under s.52) has several options:(under s.52) has several options: Dismiss the appeal (uphold law)Dismiss the appeal (uphold law) Allow the appeal (law gone)Allow the appeal (law gone) Read down (law generally Ok but not in this Read down (law generally Ok but not in this

case)case) Read in (law generally Ok, but needs “tweek” Read in (law generally Ok, but needs “tweek”

by court)by court)

Section 1 – Reasonable Limits Section 1 – Reasonable Limits Clause – Oakes Test, SCC, 1986Clause – Oakes Test, SCC, 1986

Two-part Test…Two-part Test… 1. The limit deals with a pressing and 1. The limit deals with a pressing and

substantial social problemsubstantial social problem 2. The gov’t’s response to the 2. The gov’t’s response to the

problem is reasonable and problem is reasonable and demonstrably justifieddemonstrably justified

It enforces an important gov’t objectiveIt enforces an important gov’t objective The limitation of individual rights or The limitation of individual rights or

freedoms is minimalfreedoms is minimal The law is clear and sets precise standardsThe law is clear and sets precise standards

Canadian Charter of Rights and Canadian Charter of Rights and FreedomsFreedoms

The main rights and freedoms that form The main rights and freedoms that form the Charter fall into the following 7 the Charter fall into the following 7 categories:categories: 1. Fundamental Freedoms (s.2)1. Fundamental Freedoms (s.2) 2. Democratic Rights (ss. 3-5)2. Democratic Rights (ss. 3-5) 3. Mobility Rights (ss. 6)3. Mobility Rights (ss. 6) 4. Legal Rights (ss. 7-14)4. Legal Rights (ss. 7-14) 5. Equality Rights (ss. 15)5. Equality Rights (ss. 15) 6. Official Language Rights (ss. 16 – 22)6. Official Language Rights (ss. 16 – 22) 7. Minority Language Rights (ss. 23)7. Minority Language Rights (ss. 23)

Section 2 – Fundamental Section 2 – Fundamental FreedomsFreedoms

Everyone has the following Fundamental Everyone has the following Fundamental Freedoms are sometimes referred to as Freedoms are sometimes referred to as civil libertiescivil liberties (a) freedom of conscience and religion(a) freedom of conscience and religion (b) freedom of thought, belief, opinion and (b) freedom of thought, belief, opinion and

expression: press and mediaexpression: press and media (c) freedom of peaceful assembly(c) freedom of peaceful assembly (d) freedom of association(d) freedom of association

Tradition and laws have reflected these Tradition and laws have reflected these freedoms but now they are constitutionally freedoms but now they are constitutionally protectedprotected

Sections 3 – 5 Democratic RightsSections 3 – 5 Democratic Rights

Section 3 – Every citizen of Canada Section 3 – Every citizen of Canada has the right to vote in an election has the right to vote in an election and to run for officeand to run for office Subject to restrictions on age, mental Subject to restrictions on age, mental

capacity, residence and registrationcapacity, residence and registration No members of judiciary can voteNo members of judiciary can vote

Sections 3 – 5 Democratic RightsSections 3 – 5 Democratic Rights

Section 4 – Canadians are allowed to Section 4 – Canadians are allowed to elect a new government (federal and elect a new government (federal and provincial) every 5 years, except provincial) every 5 years, except under circumstances such as war or under circumstances such as war or national emergenciesnational emergencies

Section 5 – parliament and legislative Section 5 – parliament and legislative assemblies must sit at least once assemblies must sit at least once every 12 monthsevery 12 months

Section 6 – Mobility RightsSection 6 – Mobility Rights Section 6 - all Canadians are free to Section 6 - all Canadians are free to

come and go as they please, including come and go as they please, including inter-provincially, or leaving the countryinter-provincially, or leaving the country

Includes ability to look for work or set-Includes ability to look for work or set-up businessup business

Exception to free movement are Exception to free movement are criminal and extradition laws and criminal and extradition laws and licensing/trade qualification licensing/trade qualification requirementsrequirements

Can have waiting period for social Can have waiting period for social programsprograms

Section 7 – Legal RightsSection 7 – Legal Rights

Section 7 guarantees everyone “the Section 7 guarantees everyone “the right to life, liberty and security of right to life, liberty and security of the person” that will not be taken the person” that will not be taken away except in accordance with “the away except in accordance with “the principles of fundamental justice”principles of fundamental justice”

Section 8 – Legal RightsSection 8 – Legal Rights Section 8 protects citizens from Section 8 protects citizens from

unreasonable search and seizure; that unreasonable search and seizure; that is, the police cannot enter people’s is, the police cannot enter people’s homes without a valid reasonhomes without a valid reason

http://www.theglobeandmail.com/news/national/://www.theglobeandmail.com/news/national/quebec/misbehaviour-by-police-cited-in-freeing-quebec/misbehaviour-by-police-cited-in-freeing-woman-charged-with-murder/article2201113/woman-charged-with-murder/article2201113/

Controlled Drug and Substances Act Controlled Drug and Substances Act gives police right for warrantless gives police right for warrantless search for drugs if not principle search for drugs if not principle residenceresidence

Sections 9 to 14 – Legal RightsSections 9 to 14 – Legal Rights

Sections 9 to 11 include:Sections 9 to 11 include: the right not to be arbitrarily detained or the right not to be arbitrarily detained or

imprisoned (s.9)imprisoned (s.9) the right to a counsel (s.10) (but the right to a counsel (s.10) (but SinghSingh)) the right to be tried within a reasonable the right to be tried within a reasonable

time and (s.11(b))time and (s.11(b)) the right to be presumed innocent until the right to be presumed innocent until

proven guilty (s.11(d))proven guilty (s.11(d)) s.12 – no cruel or unusual punishments.12 – no cruel or unusual punishment

Section 13 – Right Against Self-Section 13 – Right Against Self-IncriminationIncrimination

Witnesses who give evidence in court Witnesses who give evidence in court cannot have their testimony used cannot have their testimony used against them in other proceedingsagainst them in other proceedings

Exception: PerjuryException: Perjury Different than U.S. “Fifth Different than U.S. “Fifth

amendment” where someone can amendment” where someone can refuse to testifyrefuse to testify

Section 14 – Right to an Section 14 – Right to an InterpreterInterpreter

Parties, accused or witnesses who Parties, accused or witnesses who are deaf or do not understand or are deaf or do not understand or speak the language being spoken in speak the language being spoken in court have the right to be assisted by court have the right to be assisted by an interpreter (any language)an interpreter (any language)

Section 15 – Equality RightsSection 15 – Equality Rights Everyone has the right to equal protection Everyone has the right to equal protection

and equal benefit of the law without and equal benefit of the law without discrimination on the basis of race, discrimination on the basis of race, national or ethnic origin, colour, religion, national or ethnic origin, colour, religion, sex, mental or physical disability, or agesex, mental or physical disability, or age

Equality rights can be restricted Equality rights can be restricted reasonably, ex. You must be a certain age reasonably, ex. You must be a certain age to drive, vote or sign a contractto drive, vote or sign a contract

Language Rights – Sections 16-23Language Rights – Sections 16-23

Sections 16 to 22 of the Charter guarantee Sections 16 to 22 of the Charter guarantee both French and English as the two official both French and English as the two official languages of Canadalanguages of Canada

Applies to government publications, Applies to government publications, debates, other proceedings, dealing with debates, other proceedings, dealing with Federal OfficesFederal Offices

Section 23 protects right of English and Section 23 protects right of English and French minorities to have their children French minorities to have their children educated in their language if the parent’s educated in their language if the parent’s own primary education was in that own primary education was in that languagelanguage

Section 25 - GeneralSection 25 - General

Recognized the rights of Aboriginal peoples Recognized the rights of Aboriginal peoples (Indian, Metis , Inuit) in order to protect the (Indian, Metis , Inuit) in order to protect the culture, customs, traditions and language of culture, customs, traditions and language of Aboriginal peoplesAboriginal peoples

Other rights in the Charter must not Other rights in the Charter must not interfere with the rights of Aboriginal interfere with the rights of Aboriginal peoplespeoples

Aboriginal peoples are entitled to special Aboriginal peoples are entitled to special benefits under treaties, other persons who benefits under treaties, other persons who do not enjoy those benefits cannot argue do not enjoy those benefits cannot argue that they have been denied the right to be that they have been denied the right to be treated equally under s. 15treated equally under s. 15

Section 32 – Application of CharterSection 32 – Application of Charter

Section 32(1) - Charter only applies Section 32(1) - Charter only applies to gov’ts and not to private to gov’ts and not to private individuals, businesses or other individuals, businesses or other organizationsorganizations

Section 32(2) – s.15 equality Section 32(2) – s.15 equality provisions came into force three provisions came into force three years after the rest of the Charter to years after the rest of the Charter to give the gov’ts a chance to amend give the gov’ts a chance to amend their laws to bring them into line with their laws to bring them into line with the right to equalitythe right to equality

Section 33 – Application of CharterSection 33 – Application of Charter

Notwithstanding ClauseNotwithstanding Clause Balance the rights and freedoms of Balance the rights and freedoms of

Canadians with a government’s need Canadians with a government’s need to create laws that are exempt from to create laws that are exempt from certain sections of the Chartercertain sections of the Charter

Section 2 – fundamental freedomsSection 2 – fundamental freedoms Section 7-14 – legal rightsSection 7-14 – legal rights Section 15 – equality rightsSection 15 – equality rights