CLU3M Unit 2 RIGHTS AND FREEDOMS

 Rights and Freedoms are two distinct legal terms- see handout  Recognition of rights and freedoms has been a struggle throughout history  There are 5 basic questions when discussing rights and what they are: 1.What rights should people have? 2.Should some rights be absolute (unrestricted)? 3.Is everyone entitled to the same rights? 4.What is the power of the state in creating and protecting rights 5.How can people ensure that governments do not unreasonably restrict their rights and freedoms? RIGHTS AND FREEDOMS

  1215 Magna Carta- basic individual rights for the people of England  1869 Bill of Rights gave British parliament supremacy over the monarchy and extended political rights (free elections and freedom from cruel treatment)  1776 Declaration of Independence (USA)  1789 declaration of the Rights of Man (France)  Both of these documents stated that all people had human rights including inalienable rights of liberty and equality HISTORY

 1948 Universal Declaration of Human Rights- fundamental freedoms to all living people including freedom of thought, opinion, expression, religion and peaceful assembly and association  Evolution of the human rights concept in Canada hasn’t been as smooth as we think  Slavery  Limited franchise  Discriminatory practices against aboriginals, non whites and immigrants  Anti- Asian treatment  Women HISTORY

 First attempt to codify rights and freedoms across Canada was the Canadian Bill of Rights 1960  John Diefenbaker  Recognized the right to life, liberty, and security of the person  Freedom of religion, speech, assembly and association  Freedom of the press  The right to counsel and the right to a fair hearing  Had severe limitations- only applied to federal matters and could be overruled since it was only a bill not a law BILL OF RIGHTS

 Pierre Trudeau- once PM he began the process of entrenching rights and freedoms principles into law  If rights and freedoms are entrenched- they are protected, regardless of which government is in power  It also means it becomes constitutional law therefore any law passed by the government must be consistent with the terms set out in the Charter  Shifted power from supremacy of parliament to the courts and the Charter  For Trudeau to pass this he had to agree to an override clause (we will discuss this further) ENTRENCHMENT OF RIGHTS

 The Charter applied to all levels of government, Crown corporations, banks and any other government regulated organization  If there is a situation that doesn’t involve the government it doesn’t apply  Example: I own an apartment and you apply to rent. I look at you and slam the door in your face and say “ I don’t rent to people like you”. You cannot rely on the Charter…  …but you can rely on something else JURISDICTION AND ENFORCEMENT

 Section 24- people have the right to challenge the government in court if they believe that their Charter rights have been infringed or violated by the government  The Charter is written in general terms  Judges can interpret and expand on it- allow the Charter to ‘grow”-  It is up to the Supreme Court alone to determine if there are rights violations JURISDICTION AND ENFORCEMENT

 To determine whether a rights case has merit, the SCC considers these questions: 1.Was the right infringed or violated by the government? 2.Is the right in question covered by the Charter? 3.Is the violation or infringement within a reasonable limit? (uhoh…) ROLE OF THE SUPREME COURT

 If the SCC finds that a Charter right or freedom has been violated, they may strike down the law- requiring parliament to rewrite the law  It is really all about interpretation- Case Law/Precedent  The SCC (whom you do not vote for) can overrule laws passed by the people that we elect (democracy?)  R. v. Tessling (p53 of your Chapter 2 printout) ROLE OF THE SUPREME COURT