Welcome to the Charter

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• Welcome to the Charter!
• January 15, 2008

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(No Transcript)
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Agenda

• the common law constitution
• the implied Bill of Rights
• Canadian Bill of Rights

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So what are rights?

• values
• freedom and dignity of the individual
• recognized in law
• political and legal
• often in competition with other values recognized
  in law

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The Common Law Constitution

• with a Constitution similar in principle to
  that of the United Kingdom

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What was inherited in 1867?

• English common law protection of individual
  rights and liberties
• political rights participatory
• civil rights liberty from governmental restraint
• rule of law government and the people bound
  equally by law

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• rights not entrenched
• judge-made law
• alterable by statute
• individual vs. community
• private power

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Roncarelli v. Duplessis

• 1959 S.C.R. 121
• Government of Quebec, the Catholic Church,
  Jehovahs Witnesses
• breach of an implied public statutory duty by the
  Premier
• the right of Mr. Roncarelli not to be the
  subject of oppressive, arbitrary government power

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Race and Federalism

• the way that rights are protected in the basic
  idea of federalism
• language and cultural minorities driving force
  behind federal state
• the way that rights are ignored in division of
  powers cases

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Union Colliery Co. v. Bryden

• 1899 A.C. 580 (J.C.P.C.)
• s. 4., Coal Mines Regulation Act prohibits
  Chinamen who are of full age from employment in
  underground coal workings.
• ultra vires s. 91(25) only federal government
  can legislate re naturalization and aliens

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• Cunningham v. Tomey Homma, 1903 AC 151 (PC)
• Quong Wing v. The King (1914), 49 SCR 440

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Implied Bill of Rights

• are there some injustices about which no
  legislature can legislate?
• language of the preamble
• establishment of representative parliamentary
  institutions

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Reference re Alberta Statutes

• 1938 S.C.R. 100
• it is axiomatic that the practice of this right
  of free public discussion of public affairs,
  notwithstanding it incidental mischiefs is the
  breath of life for parliamentary institutions
  any attempt to abrogate this right would be
  incompetent to the provinces

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Canadian Bill of Rights

• S.C. 1960, c. 44
• United Nations Declaration of Human Rights (1948)
• American Bill of Rights

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• only applicable to federal statutes
• amendable
• disappointing interpretation
• still in force, rarely used

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R. v. Drybones

• 1970 S.C.R. 282
• 94. An Indian who
• (a) has intoxicants in his possession,
• (b) is intoxicated, or
• (c) makes or manufactures intoxicants
• off a reserve, is guilty of an offence and is
  liable on summary conviction to a fine of not
  less than ten dollars and not more than fifty
  dollars or to imprisonment for a term not
  exceeding three months or to both fine and
  imprisonment.

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Bliss v. Canada

• 1979 1 S.C.R. 183
• these provisions form an integral part of a
  legislative scheme enacted for valid federal
  objectives and they are concerned with conditions
  from which men are excluded. Any inequality
  between the sexes in this area is not created by
  legislation but by nature.

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Reading for January 17, 2008

• CLG, pp. 683-708
• The Charter, ss. 1-34
• recommended reading Hogg, Chapter 33
• Just Words, Chapter 2

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• Welcome to the Charter!
• Redux

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Schedule B, Constitution Act, 1982

• law as a tool for social change
• can democracy be realized in the absence of
  social and economic equality?
• what real effect can the Charter have?

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• R. v. Morgentaler, 1988 1 S.C.R. 30

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• Rodriguez v. British Columbia (A.G.), 1993 3
  S.C.R. 519

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• Little Sisters Book and Art Emporium v. Canada
  (Minister of Justice), 2000 2 S.C.R. 1120

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• Andrews v. The Law Society of B.C., 1989 1
  S.C.R. 143

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• RJR MacDonald Inc. v. Canada (A.G.), 1995 3
  S.C.R. 199

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History of the Charter

• international human rights movement
• American model
• national unification document

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Structure of the Charter

• Who has rights under the Charter?
• Who has duties under the Charter?
• What is the content of those rights and duties?
• When can the government override those rights?

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Preamble

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

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Primacy of the Constitution of Canada

• 52(1) The Constitution of Canada is the supreme
  law of Canada, and any law that is inconsistent
  with the provisions of the Constitution is, to
  the extent of the inconsistency, of no force or
  effect.

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Guarantee of Rights and Freedoms

• 1. 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.

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Enforcement

• 24. (1) Anyone whose rights and freedoms, as
  guaranteed by this Charter, have been infringed
  or denied may apply to a court of competent
  jurisdiction to obtain such remedy as the court
  considers appropriate and just in the
  circumstances.

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Application of the Charter

• 32. (1) This Charter applies
• to the Parliament and government of Canada in
  respect of all matters within the authority of
  Parliament including all matters relating to the
  Yukon territory and Northwest Territories and
• to the legislatures and government of each
  province in respect of all matters within the
  authority of the legislature of each province.

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Notwithstanding Clause

• 33. (1) Parliament or the legislature of a
  province may expressly declare in an Act of
  Parliament or of the legislature, as the case may
  be, that the Act or a provision thereof shall
  operate notwithstanding a provision included in
  section 2 or sections 7 to 15 of this Charter.

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Fundamental Freedoms

• 2. Everyone has the following fundamental
  freedoms
• (a) freedom of conscience and religion
• (b) freedom of thought, belief, opinion and
  expression, including freedom of the press and
  other media
• (c) freedom of peaceful assembly and
• (d) freedom of association

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Democratic Rights

• ss. 3-5
• right to vote
• maximum duration of legislative assembly
• special circumstances
• annual sitting of Parliament

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Mobility Rights

• section 6
• right to enter, remain and leave the country
• rights to move and gain livelihood

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Legal Rights

• 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

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Legal Rights

• ss. 8-14
• search and seizure
• arbitrary detention and imprisonment
• rights on arrest or detention
• rights in criminal proceedings
• treatment and punishment
• self-incrimination
• right to an interpreter

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Equality Rights

• 15. (1) Every individual is equal before and
  under the law and has the right to 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.

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Language Rights

• ss. 16-23
• official languages of Canada and New Brunswick
• language in Parliament
• language of instruction

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Interpretive Provisions

• ss. 25-32
• Aboriginal rights and freedoms protected from
  derogation
• multiculturalism
• equally to both sexes
• reference to the territories

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Merits of Entrenchment and the Legitimacy of
Judicial Review

• liberals
• conservatives
• social democrats

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Key changes 1982

• not the first bestowing of rights
• move to expansion of judicial review
• Charter outside the purview of ordinary federal
  statute
• limits to social reform?

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Key critiques?
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Key arguments in favour?
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• in the Charter vision, the main enemy of
  freedom is not disparity in wealth or
  concentration of private power, but the state.
  It is the state whose tendency to abuse power and
  hamper the heroic individual must be kept in
  constant check. Although such fears are not
  groundless, their exaggeration makes liberals
  blind to the threat of unchecked private power
  and to the role of government as a promoter or
  liberty, particularly for the disadvantaged and
  the oppressed.

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Reading for January 30, 2007

• CLG, pp. 711-725 775-780 and this letter which
  was released to the media in February 2005
  http//www.law.utoronto.ca/samesexletter.html
• recommended reading Hogg, Chapter 36
• see if you can find a current media article about
  the use of s. 33

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Questions to Guide your Reading

• Has the Charter replaced parliamentary supremacy
  with judicial supremacy?
• Do and should the Court decline to hear Charter
  issues on the basis that they are better left to
  the legislature?
• What can we do when politicians refuse to deal
  with particularly controversial issues?
  Abortion, capital punishment, doctor assisted
  suicide?
• What do you understand by the term judicial
  activism?