The Canadian Charter of Rights and Freedoms CLU3M

Time To Reflect 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 is The Charter of Rights and Freedoms? It is part of Canada’s Constitution: The Constitution Act of 1982 gave Canada control over its Constitution The Charter became the Supreme law of Canada on April 17, 1982

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.

Was there any protection for the rights of Canadians before the Charter? Prior to the Charter, Canadians relied on a mixture of federal and provincial statutes, common or judge-made law to define and protect their rights and freedoms. Statutes, however, could be amended by a simple majority vote of a legislature. The Canadian Bill of Rights, 1960 guarantees many of the same rights and freedoms outlined in the Charter. A significant difference, however, between the two is that as an ordinary act of Parliament, the Canadian Bill of Rights can be changed at the will of a Parliamentary majority. The Charter applies to both federal and provincial governments while the Bill of Rights only applies to areas which fall within the control of the federal government.

What is the Purpose of 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 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.

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 Include: The right to Vote Section 3 states that “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

Mobility Rights Include: 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 Include: Everyone has the right to life, liberty and security of the person Everyone has the right to be secure against unreasonable search or seizure. Everyone has the right not to be arbitrarily detained or imprisoned. Everyone has the right on arrest or detention: a) to be informed promptly of the reasons therefore; b) to retain and instruct counsel without delay and to be informed of that right;

Equality Rights: 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 and 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.”

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

Reasonable Limits Clause Section 1 of the Charter “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.” Rights and Freedoms are guaranteed but subject to “reasonable limits” in certain situations. i.e. R v. Oakes, 1986 and R v. Keegstra, 1990

Notwithstanding Clause Section 33 of the Charter It allows governments to enact legislation in spite of the fact that it may violate the guaranteed rights and freedoms. The law must be reviewed every 5 years It has been rarely used i.e. Quebec passed Bill C-178 (French only signs)

The Impact of the Charter Before Little could be done about unfair laws Little or no protection for minority rights or fundamental freedoms After Clearer recognition of human rights and freedoms Brought changes to laws that discriminate against people The courts can strike down laws that violate the Charter