Chapter 5:The Canadian

Charter Of Rights And Freedoms

Prime Minister John Diefenbaker and his Bill of

Rights (60’s)

The Famous FivePrime Minister William Lyon Mackenzie King with guests of honour at the unveiling of a plaque commemorating the five Alberta women whose efforts resulted in the Persons Case, which established the rights of women to hold public office in Canada, June 11, 1938

Section 15

Canadian Charter of Rights and Freedoms

• The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada.

Entrench

–verb (used with object)

1. to place in a position of strength; establish firmly or solidly: safely entrenched behind undeniable facts.

—Synonyms

1. settle, ensconce, set, implant, embed.

• The Charter is intended to protect certain political and civil rights of Canadians from the policies

and actions of all levels of government,

• and to unify the people around a set of principles that embody those rights.

These freedoms can be held against actions of all levels

of government (only) and are enforceable by the courts.

(not against the actions of people.)

The Canadian Bill of Rights, 1960

• The Charter is preceded by the Canadian Bill of Rights.

• Bill of Rights introduced by the government of John Diefenbaker in 1960.

•The Bill of Rights was only a federal statute, not a constitutional document.

•It applied only to areas of federal jurisdiction (and not provincial);

–ex. If you worked in a bank, you were protected (Banking Federal jurisdiction)

–ex. If you worked in a grocery store you were not protected. (Retail businessprovincial jurisdiction (labor law) )

Why was the CBR not as good as the CCRF?

• Therefore, the bill of rights was: limited in scope and was easily

amendable,

• A need to entrench rights existed…

The Push for Reform• The movement for human rights

and freedoms that emerged after World War II also led many to want to entrench the principles enunciated in the United Nations Universal Declaration of Human Rights.

• Society was changing how it viewed many of its social policies. (Changing values)

• Universal Declaration of Human Rights.

• This eventually led to the enactment of the Charter of

Rights and Freedoms in 1982 by the government of Pierre

Trudeau.

Pierre Elliot Trudeau (1919-2000)

Pierre Elliott Trudeau, was the 15th Prime Minister of Canada

from April 1968 to June 1979,

and again from March 1980 to June 1984.

Education• Law degree from the Université de

Montréal in 1943. • Master's degree in political economy at

Harvard University 1946. • Ph.D from the London School of

Economics (abandoned his thesis)

• This cemented Trudeau's belief that Keynesian economics and social science were essential to the creation of the "good life" in democratic society.

Admirers praise the force of Trudeau's intellect and they salute his political

acumen in preserving national unity against Quebec separatists, suppressing a violent

revolt, and establishing the Charter of Rights and Freedoms within Canada's

constitution.

His detractors accuse him of arrogance, economic mismanagement, and unduly favouring the authority of the federal

government in relation to the provinces, especially in trying to control the oil wealth

of the Prairies.

Pierre Trudeau Quotes “The past is to be respected and

acknowledged, but not worshipped; it is our future in

which we will find our greatness.”

Enough about him…

Effects of the Charter

This was because:• the Charter is more explicit (clear) with

respect to the guarantee of rights and is part of the constitution.

• And as defined in the Charter, the role of judges in enforcing them is much greater than with the Bill of Rights.

• Charter greatly expanded

Judicial ReviewJudicial Review

The courts- when confronted with violations of Charter rights:

• Have struck down unconstitutional statutes or parts of statutes. (Declared them unconstitutional and no longer of force or effect)

• Have read-in new parts to laws. (Not striking down the law, but amending it to accommodate the complaint.)

• Have read-down legislation

• the Charter granted new powers to the courts

(as stated in the Charter);

• They could now strike down laws• They could re-interpret laws (read in)

• They could exclude evidence in trials- if Charter rights have been violated in the

gathering of the evidence.

This really affected:

• Parliamentary Supremacy: The Principle that the Parliamentary branch of government (House of commons, senate, provincial/territorial legislatures) is the

highest political and law making body in the country. -This is the basis of

responsible government in Canada even today. (p.129)

• Who’s got the power now eh?

• As a result, the Charter has attracted both passionate support from

liberals and civil rights advocates.

…and criticisms by opponents of• Increased Judicial power.

(Judicial Activism)

Judicial Activism?• Let me explain …

• Judges were not supposed to be activists, not “Make change” or “cause change”

• They were only supposed to interpret laws and apply the existing laws.

• Now…the rules changed: They can:1. strike down laws if they deem them

unconstitutional.2. they can exclude evidence in a trial if they

decide…

Opposition to the Charter• Unacceptable departure from parliamentary

sovereignty?

• Empowering unelected, unrepresentative judges?

• Minority rights require judicial elite above democratic process?

• Actual vs. theoretical application of Charter– Periphery of rights, limits of “reasonableness”

"It has transformed the psyche of Canadians. This document [the

Charter] is not just an external arrangement of rules by which we live, this is an attempt to transform

who we are and who we actually feel and think we are. On the whole I think it has had that

effect." — Political scientist Alan

Cairns.

Some landmark cases include:• Morgentaler, Jan. 28, 1988; Canada's abortion law was deemed unconstitutional

on the basis that it violated a woman's right to "life, liberty and security of person."

Ford v. QuebecStruck down Quebec provincial

legislation which prohibited English on outdoor advertising

Generally agreed most important case: R v. Oakes

• R v. Oakes• Requirement to prove innocence was in

violation of s.11d• Defined the use of section 1 of the charter,

“The Limitations clause”

Public Opinion of the Charter

• A 2002 poll conducted by the Centre for Research and Information on Canada revealed that 88 per cent of Canadians felt the charter was good for Canada.

0

10

20

30

40

50

60

70

80

90

1st Qtr

Charter isGood!Charter is bad!

• After the constitution was patriated in 1982, Canadian politicians would

continue to struggle with proposed new constitutional accords. Through

the rest of the 1980s and the 90s debates over the -Meech Lake Accord, the -Charlottetown Accord and -Quebec's separation would dominate

the political dialogue.

Part II : Features

The Charter has 34 sections (each section describes different rights)

These 34 Sections are divided into 12 Categories (+a preamble):

•Guarantee of Rights and Freedoms •Fundamental Freedoms•Democratic Rights•Mobility Rights•Legal Rights•Equality Rights•Official Languages of Canada•Minority Language Education Rights

Substantive?

Procedural?•Enforcement•General•Application of Charter•Citation

The preamble to the Canadian Charter of Rights and Freedoms

• In full it reads,

– Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law

Guarantee of Rights and Freedoms & Limitations (s.1)

• Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed

The section is also known as the reasonable limits clause or limitations clause, as it allows the government to legally limit an individual's Charter rights.

• This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as hate speech (e.g. in R. v. Keegstra) and obscenity (e.g. in R. v. Butler). It has also been used to protect the unreasonable interference of government in the lives of people in a free and democratic society by defining these limits.

R. v. Keegstra

• See text.

• (R v. Big M – Lord’s Day Act)

R. v.Oakes (1986)• Oakes was charged with possession of narcotics for the

purpose of trafficking under s.8 of The Narcotics Control Act

• (Now known as the Controlled Drugs and Substances Act).

Question: Is this violation ‘demonstrably justifiable in our free and democratic society?’

Violation of s.11d - “innocent until proven guilty”

Step 1- Found guilty of possession easy.

Step 2, He had to prove that he didn’t have it for trafficking purposes…

Reverse Onus

• Onus means responsibility or burden‘Reverse onus’ means the responsibility was reversed,

• i.e. placed on the wrong person.

•It was deemed that this was not a justifiable violation of Mr. Oakes rights and so the section was struck down.

•“Oakes test” was created.

Oakes Test to see if limitation is acceptable• Oakes test• The primary test to determine if the purpose is demonstrably justifiable in a free and

democratic society is known as the Oakes test, which takes its name from the essential case R. v. Oakes 1 S.C.R. 103 which was written by Chief Justice Dickson.

• The test is applied once the claimant has proven that one of the provisions of the Charter has been violated. The onus is on the Crown to pass the Oakes test.

• In R. v. Big M Drug Mart Ltd. (1985), Dickson asserted that limitations on rights must be motivated by an objective of sufficient importance. Moreover, the right must be limited to the smallest possible extent. In Oakes (1986), Dickson elaborated on the standard when one David Oakes was accused of selling narcotics. Dickson for a unanimous Court found that David Oakes' rights had been violated because he had been presumed guilty. This violation was not justified under the second step of the two step process:

• There must be a pressing and substantial objective (It must be important)• The means must be proportional

– The means must be rationally connected to the objective – There must be minimal impairment of rights – There must be proportionality between the infringement and objective

• If the legislation fails any of the above branches, it is unconstitutional. Otherwise the impugned law passes the Oakes test and remains valid.

• Since Oakes, the test has been modified slightly…

• R. v. Big M Drug Mart Ltd. - Wikipedia, the free encyclopedia

2 Requirements to use Sec.1 Limitation

“The Litmus test for S.1”

• The objective of the (rights offending) law must be important.

• The limitation on the right must be minimal and connected to the objective.

Also considered: Placing the limitation must be for the good of society.

PROPORTIONALITY TEST

In each case the courts will be required tobalance the interests of society with thoseof individual interests.

SOCIALINTERESTS

INDIVIDUAL

INTERESTS

The Charter of Rightsbecame law April, 1982

• 1. Limitations clause • 2. Fundamental freedoms:– conscience and

religion– thought, belief, opinion

& expression– press and other media– peaceful assembly– association

Democratic rights (3-5)

- sitting of Parliament, and prov. Legislatures, at least every 12 months

• 3-5: Democratic rights: – citizens right to vote

and run for office– 5 yr limit to life of H of

C or prov. Assembly except during war etc. if supported by 2/3 vote

Mobility Rights

• 6. Mobility rights– 1. to enter, remain,

leave– 2. to move within Can.

and pursue livelihood, (subject to laws that don’t discriminate and residency provisions, and restrictions in provinces of high unemployment)

ss.7-14 Legal Rights

s.7 -life, liberty, security of person. (see next 3 slides)

s.8 (see 4th next slide)

-secure against unreasonable search and seizure.

s.9-not be detained arbitrarily

s.10 (upon arrest)

-promptly informed of reason-right to a lawyer -right to be told about right to lawyer!-right to ask judge to determine if arrest is valid, otherwise freed.

Legal Rights (s.7)

• Section 7 protects an individual's autonomy (independence) and personal legal rights from actions of the government.

DISCUSSION 7. 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.

• Life• First, there is the right to life, which stands generally as the basic right

to be alive. It has had very little legal impact (arguments that the fetus has a right to life, which would have banned abortion, were dismissed in Borowski v. Canada (Attorney General) due to mootness), but life has been thoroughly discussed by the Supreme Court in the 1993 case Rodriguez v. British Columbia (Attorney General). In that case, the Court denied that the section 7 right to bodily control could trump the right to life and thereby justify assisted suicide. As the Court wrote, it was a common societal belief that "human life is sacred or inviolable," and therefore security of the person itself could not include a right to suicide; suicide would destroy life and thus be inherently harmful.

• Liberty• Secondly, there is the right to liberty, which protects an individual's freedom

to act without physical restraint (i.e., imprisonment would be inconsistent with liberty unless it is consistent with fundamental justice). However, the right has been extended to include the power to make important personal choices. The court described it as "[touching] the core of what it means to be an autonomous human being blessed with dignity and independence in matters that can be characterized as fundamentally or inherently personal." (R. v. Clay, 2003) That is, the concept extends beyond physical restraint by the government as it goes to the core of the human experience.

• The right to choice is probably an individual right only, as opposed to also being a family right or a union right. In the 1995 Supreme Court case B. (R.) v. Children’s Aid Society, in which two parents attempted to block a certain treatment for their child on religious grounds, it was argued that the personal choice aspect of liberty guaranteed family privacy. This argument drew from United States case law, but the Supreme Court of Canada pointed out section 7 of the Charter contains individual rights, and hence there cannot be family rights. Still, mindful that there was still choices involved in the family situation, the Supreme Court split on whether liberty rights were infringed. Likewise, in I.L.W.U. v. The Queen (1992), the Supreme Court stressed the individual nature of section 7 to deny unions had a right to strike as part of the members' liberty. The Court also stressed that strikes were social-economic matters that did not involve the justice system, and section 7 was concentrated on the justice system.

• Various liberties not covered by the section 7 right to liberty include religious liberty and liberty of speech, because these are more specifically guaranteed under section 2, the liberty to vote, as this is more specifically guaranteed by section 3, and the liberty to move within, leave and enter Canada, as this is more specifically guaranteed by section 6.[1]

• Security of the person

• Thirdly, there is the right to security of the person, which consists of rights to privacy of the body and its health and of the right protecting the "psychological integrity" of an individual. That is, the right protects against significant government-inflicted harm (stress) to the mental state of the individual. (Blencoe v. B.C. (Human Rights Commission), 2000)

• Section 8 provides everyone with protection against unreasonable search and seizure. This right provides Canadians with their primary source of privacy rights against unreasonable intrusion from the state.

• Must violate an individual's reasonable expectation of privacy.

• A police officer who compells someone to produce their license would not be invasive enough to constitute a search (R. v. Ladouceur, [1990]).

• The meaning of seizure is fairly straight forward. In R. v. Dyment, [1988], the Court defined it simply as the "taking of a thing from a person by a public authority without that person's consent."

• CASE LAW!

• Section 10 Upon arrest, you have the right to:

(a) Be informed promptly why you are being arrested.

(b) To have a lawyer right away AND to be told that “you can have a lawyer right away”

(c) To have proof that your detention is legal (by a judge) and to be released otherwise. (Habeus Corpus)

Section 11

Upon being charged with an offence you have the right to:

(a) Be told what the offence is asap.(b) To have a trial within a reasonable time(c) Not be a witness against yourself.(d) Innocent until proven guilty(e) Not be denied reasonable bail(f) To have a trial by jury (if possibility of 5 yrs or more exists)(g) Only be found guilty of things that are deemed criminal at the time

they were committed.(h) If finally acquitted of crime, not to be tried again. If convicted and served time, not to be tried again. (Double Jeopardy)(i) Benefit of lesser penalty if law changed.

A- Told specific offence charged with

B- Trial within reas. Time

C- Don’t have to testify at your own trial

D- Innocent till proven guilty

E- Right to reasonable bail

S.11 (upon being charged

F- Jury trial if liable to 5 years imprisonment

G- Had to have been an offence at the time committed.

H- No ‘double jeopardy’

i- Lesser punishment if law changed.

- No cruel and unusual punishment

s.12

s.13

-Witnesses who testify wont have self-incriminating statements used against them.(unless its perjury)

s.14

- Deaf or don’t speak the language? you have the right to an interpreter

Section 15

• 15. (1) 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 and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

No discrimination (on specified grounds as well as other grounds.)

• S.15 cannot be used to prevent any programs that are deemed

‘Affirmative Action Programs’

So you ask…what are affirmative action programs?And I tell you to open to pg.217

Official Languages of Canada ss.16-22

• French & English official languages -have the same status.

• can use either language when dealing with any part of gov’t.

Minority Language Education Rights s.23

• Went to school in Fr.? -your kid can too• Went to school in Eng? – “ ”

(if reasonable)

s.24 – Enforcement & Remedies

a) Admissibility of evidence

and

b) (Remedies) Allows judges strike down laws that violate the charter.

• Courts of competent jurisdiction • (Not all types of courts have the power of s.24)• These section 24(1) remedies may only be dispensed by

a "court of competent jurisdiction". In R. v. Rahey (1987), it was found that in any case, appellate courts (COURT OF APPEAL) and provincial superior courts – courts created by the federal government – will qualify as a court of competent juridiction and may award remedies where it is considers "appropriate and just". A inferior provincial court may qualify as a court of competent jurisdiction where the remedy sought relates to trial procedure.[4]

• Exclusion of evidence

• Practices regarding what evidence may be brought against an individual in trials are addressed by section 24(2). When evidence is obtained through the violation of a Charter right, the claimant is able to apply to have the evidence excluded from the trial under this section. Typically, evidence obtained through violating an accused's right to have counsel (section 10(b)) or the right to security from unreasonable search and seizure (section 8) is excluded by this section.

• The US exclusionary rule excludes all evidence acquired through the violation of the Bill of Rights. Canada has taken a middle ground, sometimes allowing for the exclusion of evidence, whenever its use threatens to bring the "administration of justice" into "disrepute."[10]

• The 1987 case R. v. Collins established three factors to consider when determining whether to exclude evidence. First, the courts will look at whether the admission of the evidence would affect the fairness of the trial. Second, they will look at the seriousness of the Charter violation, and third, they will look at the effect of excluding the evidence on the administration of justice.

• Since Collins and other such decisions, the Supreme Court has used the Charter to exclude evidence in 45% of section 24(2) cases.[11]

• The 1987 case R. v. Collins established three factors to consider when determining whether to exclude evidence.

• 1) Affect on fairness of trial.• 2) they will look at the

seriousness of the Charter violation, and

• 3) they will look at the affect (of excluding the evidence) on the administration of justice.

s.33 The Notwithstanding clause

• An override function that the government can use to override some charter rights

• (s.2 or ss7-15)

• They can pass “rights-offending” legislation

• The Supreme court can’t strike it down.

• It expires after 5 years.

• S.33 is unpopular with citizens when the government uses it…rights-offending legislation

• Restores Parliamentary Supremacy Or, • Curbs Judicial Activism.

Can you explain how?