The Canadian Charter of Rights and Freedoms – Judicial Interpretation CLN4U

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?

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).

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.

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

Inside the Charter Everyone has the following fundamental freedoms: 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.

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.

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

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.

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.

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

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

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.

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

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 Charter’s 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.

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

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.

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 government’s 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)

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 Charter’s 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.