Chapter 5 – The Charter and The Courts Unit 2 – Rights and Freedoms The Canadian Charter of Rights and Freedoms

Chapter 5 – The Charter Chapter 5 – The Charter and The Courts and The Courts

Unit 2 – Rights and FreedomsUnit 2 – Rights and Freedoms

The Canadian Charter of The Canadian Charter of Rights and FreedomsRights and Freedoms

AgendaAgenda

1. The Canadian Charter of Rights 1. The Canadian Charter of Rights and Freedomsand Freedoms

Learning Goal for TodayLearning Goal for Today

By the end of the lesson(s), students By the end of the lesson(s), students will be able to analyze how rights will be able to analyze how rights and freedoms are protected under and freedoms are protected under the Charter of Rights and Freedoms the Charter of Rights and Freedoms (e.g., fundamental freedoms, (e.g., fundamental freedoms, democratic, mobility, legal, equality, democratic, mobility, legal, equality, and language rights)and language rights)

ExpectationsExpectations

CGE3f – examines, evaluates and CGE3f – examines, evaluates and applies knowledge of interdependent applies knowledge of interdependent systems (physical, political, ethical, systems (physical, political, ethical, socio-economic and ecological) for socio-economic and ecological) for the development of a just and the development of a just and compassionate societycompassionate society

analyze how rights and freedoms are analyze how rights and freedoms are protected under the Charter of Rights protected under the Charter of Rights and Freedomsand Freedoms

Canadian Charter of Rights and Canadian Charter of Rights and FreedomsFreedoms

*Canadian Charter of Rights and *Canadian Charter of Rights and FreedomsFreedoms

JurisdictionJurisdiction Charter defines relationship between Charter defines relationship between

people, organizations, companies and people, organizations, companies and gov’tsgov’ts

Applies to all areas regulated by the Applies to all areas regulated by the federal gov’t and provincial gov’tfederal gov’t and provincial gov’t


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


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)


RightsRights A legal, moral or social entitlement that A legal, moral or social entitlement that

citizens can expect mainly from the citizens can expect mainly from the governmentgovernment

Are granted by legislation or regulation Are granted by legislation or regulation and therefore, may be restrictedand therefore, may be restricted


FreedomsFreedoms The right to conduct one’s affairs The right to conduct one’s affairs

without unreasonable government without unreasonable government interferenceinterference

Actions which are so fundamental; they Actions which are so fundamental; they cannot be excessively restricted by lawscannot be excessively restricted by laws


Balancing the Balancing the Power of the Power of the CharterCharter

Measured Judicial Measured Judicial Activism v. Activism v. Unelected Social Unelected Social EngineeringEngineering

*Section 1 – Reasonable Limits *Section 1 – Reasonable Limits ClauseClause

Section 1 – Reasonable Limits Clause – None Section 1 – Reasonable Limits Clause – None of our rights and freedoms are absolute – of our rights and freedoms are absolute – they can be limited in some circumstancesthey can be limited in some circumstances

Freedom of speech? Nazi flag?Freedom of speech? Nazi flag? Robin W. Sharpe (Pedophile) ? Child Robin W. Sharpe (Pedophile) ? Child

Pornography?Pornography?

Canadian Charter of Rights and Canadian Charter of Rights and FreedomsFreedoms

Charter = moral relatavistism?Charter = moral relatavistism? Sharpe wrote fictional stories that Sharpe wrote fictional stories that

constituted child pornographyconstituted child pornography Sharpe was acquitted at trial and B.C.C.A. Sharpe was acquitted at trial and B.C.C.A.

declined appeal stating possession of declined appeal stating possession of fictional child pornography was freedom of fictional child pornography was freedom of expressionexpression

Fortunately, the SCC disagreed and the Fortunately, the SCC disagreed and the criminal code provision against child criminal code provision against child pornography was seen as a reasonable pornography was seen as a reasonable limit in a free and democratic society even limit in a free and democratic society even though it violated freedom of expressionthough it violated freedom of expression

*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


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


These freedoms ensure that These freedoms ensure that Canadians are free to create and Canadians are free to create and express their ideas, gather to discuss express their ideas, gather to discuss them and communicate them widelythem and communicate them widely

Freedoms are central to our concept Freedoms are central to our concept of a democratic societyof a democratic society


The Fundamental Freedoms are balanced The Fundamental Freedoms are balanced against potential harm to othersagainst potential harm to others (a) freedom of conscience and religion – (a) freedom of conscience and religion – can’t can’t

cause death (Tutton case)cause death (Tutton case) (b) freedom of thought, belief, opinion and (b) freedom of thought, belief, opinion and

expression: press and media – expression: press and media – obscenity laws, obscenity laws, hate laws, publication banshate laws, publication bans

(c) freedom of peaceful assembly - (c) freedom of peaceful assembly - must be must be peaceful and lawfulpeaceful and lawful

(d) freedom of association – (d) freedom of association – organized crime organized crime gang laws (ex. motorcycle gangs) area of gang laws (ex. motorcycle gangs) area of tensiontension

*Section 2 – Fundamental *Section 2 – Fundamental FreedomsFreedoms

R. v. Keegstra, SCC, 1990R. v. Keegstra, SCC, 1990 – s.319(2) – s.319(2) of Criminal Code prohibits willfully of Criminal Code prohibits willfully promoting hatred against an promoting hatred against an identifiable groupidentifiable group

Keegstra argued violated s.2(b) Keegstra argued violated s.2(b) freedom of expressionfreedom of expression

SCC said s.319(2) did violate s.2(b) SCC said s.319(2) did violate s.2(b) but reasonable limit under Charter but reasonable limit under Charter s.1s.1


KeegstraKeegstra (cont’d) – the court said (cont’d) – the court said that we are free to think what we that we are free to think what we want, but once we begin to express want, but once we begin to express our opinion – and if that opinion has our opinion – and if that opinion has an effect on others – then the law an effect on others – then the law may prevent us from publically may prevent us from publically proclaiming those viewsproclaiming those views


These freedoms ensure that These freedoms ensure that Canadians are free to create and Canadians are free to create and express their ideas, gather to discuss express their ideas, gather to discuss them and communicate them widelythem and communicate them widely

Freedoms are central to our concept Freedoms are central to our concept of a democratic societyof a democratic society

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


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 to 14 – Legal Rights*Section 7 to 14 – Legal Rights

Sections 7 to 14 set out rights that Sections 7 to 14 set out rights that protect us in our dealings with the protect us in our dealings with the justice system, especially where we justice system, especially where we are chargedare chargedHelp project individuals from any Help project individuals from any arbitrary measures from the state; arbitrary measures from the state; which helps ensure justicewhich helps ensure justice

*Section 7 – Legal Rights*Section 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/http://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 11 – Legal RightsSections 9 to 11 – Legal Rights

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

or imprisoned (s.9)or 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 the right to be tried within a

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

until proven guilty (s.11(d))until proven guilty (s.11(d))

Section 12 – No cruel or unusual Section 12 – No cruel or unusual treatment or punishmenttreatment or punishment

Gov’t cannot treat individuals cruelly Gov’t cannot treat individuals cruelly or punish them in an excessively or punish them in an excessively harsh mannerharsh manner

Ex. 30 days imprisonment for Ex. 30 days imprisonment for wearing socks and sandalswearing socks and sandals

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 Rights*Section 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

*Section 15 – Equality Rights *Section 15 – Equality Rights (Cont’d)(Cont’d)

Courts held s. 15 also protects equality on Courts held s. 15 also protects equality on the basis of other characteristics that are the basis of other characteristics that are not specifically set out in it: ex. sexual not specifically set out in it: ex. sexual orientation (M. v. H.) READ AND CLASS orientation (M. v. H.) READ AND CLASS DISCUSSION P.149DISCUSSION P.149

http://scc.lexum.org/en/1999/1999scr2-http://scc.lexum.org/en/1999/1999scr2-3/1999scr2-3.pdf3/1999scr2-3.pdf

Court considered that the purpose of s. Court considered that the purpose of s. 15(1) of the 15(1) of the Charter Charter is remedying such ills is remedying such ills as prejudice, stereotyping, and historical as prejudice, stereotyping, and historical disadvantage to change the definition of disadvantage to change the definition of spouse to include same-sex spousesspouse to include same-sex spouses

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 Charter*Section 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

*Section 33 – Application of *Section 33 – Application of CharterCharter

Notwithstanding clause (cont’d)Notwithstanding clause (cont’d) Federal or Provincial gov’t must state in Federal or Provincial gov’t must state in

their legislation that the Charter does their legislation that the Charter does not applynot apply

Only valid for 5 yearsOnly valid for 5 years After 5 years, the legislation becomes After 5 years, the legislation becomes

invalid unless re-enacted by the invalid unless re-enacted by the governmentgovernment

Was needed to close the deal with Was needed to close the deal with provincesprovinces

Documents

Chapter 5 – The Charter and The Courts Unit 2 – Rights and Freedoms The Canadian Charter of Rights and Freedoms