The Canadian Charter of Rights and Freedoms CLN4U

Recall… Charter is entrenched in the Constitution Included as part of the patriation process in 1982 As a constitutional document, the Charter takes precedence over all legislation Over the last 30 years, it has been somewhat common for legislation struck down because it contravenes the Charter

Fundamental Freedoms The Charter guarantees four fundamental freedoms Religion Expression Peaceful Assembly Association These rights apply to everyone

Other rights protected under Charter Some rights don’t apply to everyone (for example only to citizens) Democratic rights Mobility rights Legal rights Equality rights Language rights Aboriginal and multicultural heritage rights

Democratic Rights What does it mean to be a citizen? Origins date back to the Roman Empire that consisted of 80 million people, but only 6 million enjoyed the privilege status of Roman citizenship (right to vote in assembly) In Canada, the Citizenship Act states that citizens are those persons who were born in Canada or born outside of Canada to a Canadian Citizen, or who have been granted citizenship under the Act and have taken the oath of citizenship p. 164 Emily Murphy – Heritage Moment http://www.youtube.com/watch?v=flIPB3hg6rg

Mobility Rights – Canadian Citizen The right to enter, remain in, or leave the country are fundamental rights of a free democratic and are guaranteed as are the rights to move freely, take up residence and work within a country Law Society of Upper Canada v. Skapinker

Legal Rights – Section 7 John Lock’s classical conception of fundamental human rights defined as life, liberty, and property are clearly reflected in s.7 of the Charter However not exact in nature with regards to Lock’s idea of property and s.7 because Property is not guaranteed, but the right to the security of person is and; Therefore, the early drafting stages of the charter omitted property rights The rights under s. 7 are not absolute and; Can be removed by the state so long as their removal is in accordance with the “principles of fundamental justice”

Minority Language Educational Rights Equality Rights Section 15 of the charter Covers: “equality before and under the law and equal protection and benefit of law” Affirmative action programs Minority Language Educational Rights Section 23 of the charter Covers: Language of Instruction Continuity of language instruction

Official Languages of Canada Sections16-22 of the charter Covers: court proceedings Parliamentary statues and records Communications by public with federal institutions Rights and privileges Aboriginal Rights Section 25 of the charter Covers: aboriginal rights and freedoms not affected by the charter Land claims etc.

Fundamental Justice – For the courts, has been a matter of determining what has been and continues to be fair and right in Canadian society Represents a belief in the dignity and the worth of the person and the rule of law Two stage process under s.7 for constitutional analysis – Whether a law violates the principles of fundamental justice is considered only after the court has determined that an infringement of the rights to life, liberty, or security of the person has occurred

Likewise, courts may rule a law constitutionally valid despite its denial of life, liberty, or security of person, so long as the deprivation of these rights in in accordance with the principles of “fundamental justice”

Defining Cases in Canada R. v. Morgentaler – SCC 1988 Appeal allowed: Section 251 (now section 287) of the Criminal Code was an interference by the state with “bodily integrity” that violated a women’s liberty, security of the person and the right to fundamental justice under section 7 of the Charter (Textbook p. 178-179)

Can these rights be violated? Yes There are two legal ways for the government to violate our Charter rights: Section 1 Section 33

Section 1: The Reasonable Limits Clause “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.”

Section 1: The Reasonable Limits Clause R. v. Oakes established a two-part test, often referred to as the Oakes test. Can a limit be justified? Is objective of legislation important enough in terms of societal concerns to warrant overriding a right? Proportionality test Rational connection between the limitation of rights and the objective of the legislation? Aka rational connection Does the limitation impair rights or freedoms as little as possible? Aka minimal impairment Are the effects of the limitation proportional to the objective?

Section 33: The 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 Basically: a Provincial legislature can pass a law that is inconsistent with the Charter Legislation must be reviewed every 5 years Open to great use, but used very rarely: Quebec (language laws) Saskatchewan (back-to-work legislation in 1986) p. 64-68