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

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

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

Expectations Expectations CGE3f – examines, evaluates and applies knowledge of interdependent systems (physical, political, ethical, socio-economic and ecological) for the development of a just and compassionate society CGE3f – examines, evaluates and applies knowledge of interdependent systems (physical, political, ethical, socio-economic and ecological) for the development of a just and compassionate society analyze how rights and freedoms are protected under the Charter of Rights and Freedoms analyze how rights and freedoms are protected under the Charter of Rights and Freedoms

Canadian Charter of Rights and Freedoms

*Canadian Charter of Rights and Freedoms Jurisdiction Jurisdiction Charter defines relationship between people, organizations, companies and gov’ts Charter defines relationship between people, organizations, companies and gov’ts Applies to all areas regulated by the federal gov’t and provincial gov’t Applies to all areas regulated by the federal gov’t and provincial gov’t

*Canadian Charter of Rights and Freedoms Supreme Court is guardian Supreme Court is guardian Anyone can challenge gov’t in court if their rights or freedoms have been infringed (Section 24) Anyone can challenge gov’t in court if their rights or freedoms have been infringed (Section 24) If Charter violated, maybe exclude criminal evidence If Charter violated, maybe exclude criminal evidence

*Canadian Charter of Rights and Freedoms When handing down a judgment, the court (under s.52) has several options: When handing down a judgment, the court (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 case) Read down (law generally Ok but not in this case) Read in (law generally Ok, but needs “tweek” by court) Read in (law generally Ok, but needs “tweek” by court)

*Canadian Charter of Rights and Freedoms Rights Rights A legal, moral or social entitlement that citizens can expect mainly from the government A legal, moral or social entitlement that citizens can expect mainly from the government Are granted by legislation or regulation and therefore, may be restricted Are granted by legislation or regulation and therefore, may be restricted

*Canadian Charter of Rights and Freedoms Freedoms Freedoms The right to conduct one’s affairs without unreasonable government interference The right to conduct one’s affairs without unreasonable government interference Actions which are so fundamental; they cannot be excessively restricted by laws Actions which are so fundamental; they cannot be excessively restricted by laws

*Canadian Charter of Rights and Freedoms Balancing the Power of the Charter Balancing the Power of the Charter Measured Judicial Activism v. Unelected Social Engineering Measured Judicial Activism v. Unelected Social Engineering

*Section 1 – Reasonable Limits Clause Section 1 – Reasonable Limits Clause – None of our rights and freedoms are absolute – they can be limited in some circumstances Section 1 – Reasonable Limits Clause – None of our rights and freedoms are absolute – they can be limited in some circumstances Freedom of speech? Nazi flag? Freedom of speech? Nazi flag? Robin W. Sharpe (Pedophile) ? Child Pornography? Robin W. Sharpe (Pedophile) ? Child Pornography?

Canadian Charter of Rights and Freedoms Charter = moral relatavistism? Charter = moral relatavistism? Sharpe wrote fictional stories that constituted child pornography Sharpe wrote fictional stories that constituted child pornography Sharpe was acquitted at trial and B.C.C.A. declined appeal stating possession of fictional child pornography was freedom of expression Sharpe was acquitted at trial and B.C.C.A. declined appeal stating possession of fictional child pornography was freedom of expression Fortunately, the SCC disagreed and the criminal code provision against child pornography was seen as a reasonable limit in a free and democratic society even though it violated freedom of expression Fortunately, the SCC disagreed and the criminal code provision against child pornography was seen as a reasonable limit in a free and democratic society even though it violated freedom of expression

*Section 1 – Reasonable Limits Clause – Oakes Test, SCC, 1986 Two-part Test… Two-part Test… 1. The limit deals with a pressing and substantial social problem 1. The limit deals with a pressing and substantial social problem 2. The gov’t’s response to the problem is reasonable and demonstrably justified 2. The gov’t’s response to the problem is reasonable and demonstrably justified It enforces an important gov’t objective It enforces an important gov’t objective The limitation of individual rights or freedoms is minimal The limitation of individual rights or freedoms is minimal The law is clear and sets precise standards The law is clear and sets precise standards

*Canadian Charter of Rights and Freedoms The main rights and freedoms that form the Charter fall into the following 7 categories: The main rights and freedoms that form the Charter fall into the following 7 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 Freedoms Everyone has the following Fundamental Freedoms are sometimes referred to as civil liberties Everyone has the following Fundamental Freedoms are sometimes referred to as civil liberties (a) freedom of conscience and religion (a) freedom of conscience and religion (b) freedom of thought, belief, opinion and expression: press and media (b) freedom of thought, belief, opinion and expression: 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 freedoms but now they are constitutionally protected Tradition and laws have reflected these freedoms but now they are constitutionally protected

Section 2 – Fundamental Freedoms These freedoms ensure that Canadians are free to create and express their ideas, gather to discuss them and communicate them widely These freedoms ensure that Canadians are free to create and express their ideas, gather to discuss them and communicate them widely Freedoms are central to our concept of a democratic society Freedoms are central to our concept of a democratic society

Section 2 – Fundamental Freedoms The Fundamental Freedoms are balanced against potential harm to others The Fundamental Freedoms are balanced against potential harm to others (a) freedom of conscience and religion – can’t cause death (Tutton case) (a) freedom of conscience and religion – can’t cause death (Tutton case) (b) freedom of thought, belief, opinion and expression: press and media – obscenity laws, hate laws, publication bans (b) freedom of thought, belief, opinion and expression: press and media – obscenity laws, hate laws, publication bans (c) freedom of peaceful assembly - must be peaceful and lawful (c) freedom of peaceful assembly - must be peaceful and lawful (d) freedom of association – organized crime gang laws (ex. motorcycle gangs) area of tension (d) freedom of association – organized crime gang laws (ex. motorcycle gangs) area of tension

*Section 2 – Fundamental Freedoms R. v. Keegstra, SCC, 1990 – s.319(2) of Criminal Code prohibits willfully promoting hatred against an identifiable group R. v. Keegstra, SCC, 1990 – s.319(2) of Criminal Code prohibits willfully promoting hatred against an identifiable group Keegstra argued violated s.2(b) freedom of expression Keegstra argued violated s.2(b) freedom of expression SCC said s.319(2) did violate s.2(b) but reasonable limit under Charter s.1 SCC said s.319(2) did violate s.2(b) but reasonable limit under Charter s.1

*Section 2 – Fundamental Freedoms Keegstra (cont’d) – the court said that we are free to think what we want, but once we begin to express our opinion – and if that opinion has an effect on others – then the law may prevent us from publically proclaiming those views Keegstra (cont’d) – the court said that we are free to think what we want, but once we begin to express our opinion – and if that opinion has an effect on others – then the law may prevent us from publically proclaiming those views

*Section 2 – Fundamental Freedoms These freedoms ensure that Canadians are free to create and express their ideas, gather to discuss them and communicate them widely These freedoms ensure that Canadians are free to create and express their ideas, gather to discuss them and communicate them widely Freedoms are central to our concept of a democratic society Freedoms are central to our concept of a democratic society

Sections 3 – 5 Democratic Rights Section 3 – Every citizen of Canada has the right to vote in an election and to run for office Section 3 – Every citizen of Canada has the right to vote in an election and to run for office Subject to restrictions on age, mental capacity, residence and registration Subject to restrictions on age, mental capacity, residence and registration No members of judiciary can vote No members of judiciary can vote

Sections 3 – 5 Democratic Rights Section 4 – Canadians are allowed to elect a new government (federal and provincial) every 5 years, except under circumstances such as war or national emergencies Section 4 – Canadians are allowed to elect a new government (federal and provincial) every 5 years, except under circumstances such as war or national emergencies

Sections 3 – 5 Democratic Rights Section 5 – parliament and legislative assemblies must sit at least once every 12 months Section 5 – parliament and legislative assemblies must sit at least once every 12 months

Section 6 – Mobility Rights Section 6 - all Canadians are free to come and go as they please, including inter- provincially, or leaving the country Section 6 - all Canadians are free to come and go as they please, including inter- provincially, or leaving the country Includes ability to look for work or set-up business Includes ability to look for work or set-up business Exception to free movement are criminal and extradition laws and licensing/trade qualification requirements Exception to free movement are criminal and extradition laws and licensing/trade qualification requirements Can have waiting period for social programs Can have waiting period for social programs

*Section 7 to 14 – Legal Rights Sections 7 to 14 set out rights that protect us in our dealings with the justice system, especially where we are charged Sections 7 to 14 set out rights that protect us in our dealings with the justice system, especially where we are charged Help project individuals from any arbitrary measures from the state; which helps ensure justice Help project individuals from any arbitrary measures from the state; which helps ensure justice

*Section 7 – Legal Rights Section 7 guarantees everyone “the right to life, liberty and security of the person” that will not be taken away except in accordance with “the principles of fundamental justice” Section 7 guarantees everyone “the right to life, liberty and security of the person” that will not be taken away except in accordance with “the principles of fundamental justice”

Section 8 – Legal Rights Section 8 protects citizens from unreasonable search and seizure; that is, the police cannot enter people’s homes without a valid reason Section 8 protects citizens from unreasonable search and seizure; that is, the police cannot enter people’s homes without a valid reason /misbehaviour-by-police-cited-in-freeing-woman- charged-with-murder/article / /misbehaviour-by-police-cited-in-freeing-woman- charged-with-murder/article / /misbehaviour-by-police-cited-in-freeing-woman- charged-with-murder/article / /misbehaviour-by-police-cited-in-freeing-woman- charged-with-murder/article / Controlled Drug and Substances Act gives police right for warrantless search for drugs if not principle residence Controlled Drug and Substances Act gives police right for warrantless search for drugs if not principle residence

Sections 9 to 11 – Legal Rights Sections 9 to 11 include: Sections 9 to 11 include: the right not to be arbitrarily detained or imprisoned (s.9) the right not to be arbitrarily detained or imprisoned (s.9) the right to a counsel (s.10) (but Singh) the right to a counsel (s.10) (but Singh) the right to be tried within a reasonable time and (s.11(b)) the right to be tried within a reasonable time and (s.11(b)) the right to be presumed innocent until proven guilty (s.11(d)) the right to be presumed innocent until proven guilty (s.11(d))

Section 12 – No cruel or unusual treatment or punishment Gov’t cannot treat individuals cruelly or punish them in an excessively harsh manner Gov’t cannot treat individuals cruelly or punish them in an excessively harsh manner Ex. 30 days imprisonment for wearing socks and sandals Ex. 30 days imprisonment for wearing socks and sandals

Section 13 – Right Against Self- Incrimination Witnesses who give evidence in court cannot have their testimony used against them in other proceedings Witnesses who give evidence in court cannot have their testimony used against them in other proceedings Exception: Perjury Exception: Perjury Different than U.S. “Fifth amendment” where someone can refuse to testify Different than U.S. “Fifth amendment” where someone can refuse to testify

Section 14 – Right to an Interpreter Parties, accused or witnesses who are deaf or do not understand or speak the language being spoken in court have the right to be assisted by an interpreter (any language) Parties, accused or witnesses who are deaf or do not understand or speak the language being spoken in court have the right to be assisted by an interpreter (any language)

*Section 15 – Equality Rights Everyone has the right to equal protection and equal benefit of the law without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, mental or physical disability, or age Everyone has the right to equal protection and equal benefit of the law without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, mental or physical disability, or age Equality rights can be restricted reasonably, ex. You must be a certain age to drive, vote or sign a contract Equality rights can be restricted reasonably, ex. You must be a certain age to drive, vote or sign a contract

*Section 15 – Equality Rights (Cont’d) Courts held s. 15 also protects equality on the basis of other characteristics that are not specifically set out in it: ex. sexual orientation (M. v. H.) READ AND CLASS DISCUSSION P.149 Courts held s. 15 also protects equality on the basis of other characteristics that are not specifically set out in it: ex. sexual orientation (M. v. H.) READ AND CLASS DISCUSSION P /1999scr2-3.pdf 3/1999scr2-3.pdf 3/1999scr2-3.pdf 3/1999scr2-3.pdf Court considered that the purpose of s. 15(1) of the Charter is remedying such ills as prejudice, stereotyping, and historical disadvantage to change the definition of spouse to include same- sex spouses Court considered that the purpose of s. 15(1) of the Charter is remedying such ills as prejudice, stereotyping, and historical disadvantage to change the definition of spouse to include same- sex spouses

Language Rights – Sections Sections 16 to 22 of the Charter guarantee both French and English as the two official languages of Canada Sections 16 to 22 of the Charter guarantee both French and English as the two official languages of Canada Applies to government publications, debates, other proceedings, dealing with Federal Offices Applies to government publications, debates, other proceedings, dealing with Federal Offices Section 23 protects right of English and French minorities to have their children educated in their language if the parent’s own primary education was in that language Section 23 protects right of English and French minorities to have their children educated in their language if the parent’s own primary education was in that language

Section 25 - General Recognized the rights of Aboriginal peoples (Indian, Metis, Inuit) in order to protect the culture, customs, traditions and language of Aboriginal peoples Recognized the rights of Aboriginal peoples (Indian, Metis, Inuit) in order to protect the culture, customs, traditions and language of Aboriginal peoples Other rights in the Charter must not interfere with the rights of Aboriginal peoples Other rights in the Charter must not interfere with the rights of Aboriginal peoples Aboriginal peoples are entitled to special benefits under treaties, other persons who do not enjoy those benefits cannot argue that they have been denied the right to be treated equally under s. 15 Aboriginal peoples are entitled to special benefits under treaties, other persons who do not enjoy those benefits cannot argue that they have been denied the right to be treated equally under s. 15

Section 32 – Application of Charter Section 32(1) - Charter only applies to gov’ts and not to private individuals, businesses or other organizations Section 32(1) - Charter only applies to gov’ts and not to private individuals, businesses or other organizations Section 32(2) – s.15 equality provisions came into force three years after the rest of the Charter to give the gov’ts a chance to amend their laws to bring them into line with the right to equality Section 32(2) – s.15 equality provisions came into force three years after the rest of the Charter to give the gov’ts a chance to amend their laws to bring them into line with the right to equality

*Section 33 – Application of Charter Notwithstanding Clause Notwithstanding Clause Balance the rights and freedoms of Canadians with a government’s need to create laws that are exempt from certain sections of the Charter Balance the rights and freedoms of Canadians with a government’s need to create laws that are exempt from certain sections of the Charter Section 2 – fundamental freedoms Section 2 – fundamental freedoms Section 7-14 – legal rights Section 7-14 – legal rights Section 15 – equality rights Section 15 – equality rights

*Section 33 – Application of Charter Notwithstanding clause (cont’d) Notwithstanding clause (cont’d) Federal or Provincial gov’t must state in their legislation that the Charter does not apply Federal or Provincial gov’t must state in their legislation that the Charter does not apply Only valid for 5 years Only valid for 5 years After 5 years, the legislation becomes invalid unless re-enacted by the government After 5 years, the legislation becomes invalid unless re-enacted by the government Was needed to close the deal with provinces Was needed to close the deal with provinces