The Canadian Charter of Rights and Freedoms

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The Canadian Charter of Rights and Freedoms
Judicial Interpretation
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Think About it?

• What do you think is meant by the term Freedom?
  What does it mean to you?
• What are rights?
• How are the two different?

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• What is a right?
• A right is something that has been granted by
  statute (an Act passed by a governing body) or
  regulation.
• What is freedom?
• Freedom is the power to act without unfair
  interference by an individual or the state.
  Freedom is neither created by law nor is it
  absolute. It can be limited by statute if the
  limitation is found by the courts to be
  justifiable (Section 1).

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What does the Charter describe?

• The Charter describes important rights and
  freedoms that belong to all Canadians. These
  rights cannot be taken away by anyone, not even
  federal and provincial governments.

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What is The Charter of Rights and Freedoms?

• The Purpose of the Charter is to limit government
• The Federal and Provincial governments are guided
  by the Charter in making laws
• The Courts are guided by the Charter in applying
  laws
• Individuals, associations or the government can
  ask the courts to decide how the charter applies
  to different situations

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Inside the Charter
Fundamental freedoms are civil liberties that are
important to the proper operation of a liberal
democracy. Section 2 of the Charter identifies
the Fundamental Freedoms that we are all
entitled to as Canadian Citizens

• Everyone has the following fundamental freedoms
• freedom of conscience and religion
• freedom of thought, belief, opinion and
  expression, including freedom of the press and
  other media of communication
• freedom of peaceful assembly and
• freedom of association.

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Question?

• When can an individual be charged with unlawful
  assembly?

Answer!

• individuals may be charged with unlawful assembly
  if they are part of a gathering of three or more
  persons that is not peaceful or if they are seen
  to be part of a group that is involved in a riot
  disturbing the peace tumultuously.

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Inside the Charter

• The Charter gives Canadian Citizens the following
  types of rights
• Democratic Rights
• Mobility Rights
• Equality Rights
• Legal Rights
• Language Rights

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Democratic Rights
Democratic rights regulate the functioning of the
Canadian democratic system Sections 3-5

• The right of every citizen to vote in federal and
  provincial elections.
• The right of every citizen to qualify for
  membership in the House of Commons and provincial
  legislatures. (In other words, the right to run
  for public office.)
• No more than five years may elapse between
  general elections for the House of Commons or
  provincial legislatures.
• In time of real or apprehended war, invasion, or
  insurrection, a two-thirds vote can continue the
  life the House of Commons beyond five years.

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Mobility Rights

• aimed at making it easier for Canadians to move
  from one province to another to find work.
• important considering the number of restrictions
  provincial governments place on inter-provincial
  mobility (i.e. residency requirements for
  provincial benefits and hiring practices
  favouring current residents).
• Section 6 of the Charter provides for the
  following rights.

• the right to enter, remain in and leave Canada.
• The right to move to and take up residence in any
  province and
• The right to pursue the gaining of a livelihood
  in any province.

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Legal Rights

• Legal rights refer to procedural safeguards
  designed to protect people from governmental
  abuse under the law. Legal rights are provided to
  any person or entity affected by provincial or
  federal authorities. Legal rights are thus
  provided to permanent citizens, temporary
  citizens, refugees, tourists, and even
  corporations

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Sections 7 to 14 of the Charter guarantee the
following

• the right to life, liberty, and security of
  person (except when the deprivation of these
  rights is done in accordance with the principles
  of fundamental justice),
• security against unreasonable search and seizure,
  
• no arbitrary detention or imprisonment,
• to be informed promptly for the reasons for any
  arrest or detention,
• retain and instruct council or arrest,
• trial within a reasonable time by an impartial
  tribunal,
• the presumption of innocence,
• no self-incrimination,
• no cruel and unusual punishment, and
• the right to a court-appointed interpreter

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Equality Rights Section 15

• The Equality rights section of the Charter was
  delayed until April 17, 1985 to give the
  Provincial Governments time to Update laws to
  meet equality requirements.
• The Charter States that Every individual is
  equal before and under the law
• Every person 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.
• subsection (2) explicitly states that section 15
  does not preclude affirmative action programs
  that has as their object the amelioration of
  conditions of disadvantaged individuals or
  groups.

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Language Rights

• explains that both English and French are the
  official languages of Canada
• Canadians have the right to use either when
  communicating with or receiving services from
  federal government offices
• Provincial governments must provide education to
  Canadian citizens in the official language (i.e.,
  French or English) of their choice

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Application of the Charter

• The Charter contains three clauses that define
  its application
• Section 32 defines the scope of the Charter
• Section 1 allows for violation of the Charters
  rights and freedoms in certain circumstances
• Section 33 provides for legislative override of
  the Charter
• The following is an introduction to each of these
  application clauses.

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Section 32

• Charter only applies to Parliament, provincial
  legislatures, and federal and provincial
  governments.
• the Charter only applies to the relations between
  government and persons.
• This includes relations between persons and the
  legislative and executive branches of government,
  the public service (bureaucracy, police, etc), or
  agencies that exercise power on behalf of the
  government (hospitals, universities, law
  societies).
• This does not, however, include the courts.
• does not apply to relations between private
  individuals

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Section 1

• Section 1 states that the rights and freedoms
  guaranteed by the Charter may be subject to
  reasonable limits that can be demonstrably
  justified in a free and democratic society.
• In other words, the rights and freedoms under the
  Charter can be violated if the violation is
  reasonable and justifiable.
• The Supreme Court of Canada has defined a test
  for determining whether a violation is reasonable
  and justifiable.

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Oakes test

• The Oakes test has two key components
• 1. Sufficient Importance
• The government must show that its objective is
  sufficiently important to warrant a violation of
  a right or freedom
• 2. Proportionality
• The government must prove that the violation of
  the right or freedom is proportionate to its
  objective. In showing proportionality, the
  government must prove the following
• a. Rational Connection
• The violation must be rationally connected to the
  objective (it must be necessary to achieve the
  governments objective)
• b. Minimal Impairment
• The violation must minimally impair the right or
  freedom (the government did not go overboard in
  achieving its objective)
• c. Detriments versus Benefits
• The detriments of the violation must not outweigh
  its benefits (the solution must not be worse than
  the problem)

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Section 33

• Section 33 is the famous notwithstanding clause
  of the Charter.
• Under section 33, the federal Parliament and
  provincial legislatures have the ability to
  declare that a particular piece of legislation is
  notwithstanding or beyond Charter review.
• This ability only applies to the Charters
  section 2, sections 7 to 14, and section 15
• Any application of section 33 is only good for
  five years. After that time, the piece of
  legislation becomes open to Charter review by the
  courts.