Chapter 2 The Canadian Charter of Rights and Freedoms Pierre Trudeau – wanted a “just society” and rights entrenched

Charter of Rights and Freedoms Videos/Overview Part 1 Part 2 Part 3 Part 4 Part 5 Part 6 Bell and Group Work Review Your Understanding Case Studies/Looking Back/Issue Assignment x 2 Quizzes Study Guide and Test Charter of Rights and Freedoms Appendix 598 - 601

Civil Rights vs Human Rights limit the power that a government has over its citizens Human Rights: protect people from unfair discrimination by other individuals Historical Documents Magna Carta, 1216 Declaration of Independence, 1776 Declaration of Rights of Man, 1789 United Nations UDHR, 1948 Bill of Rights, 1960 (only applied to federal statute/matters and could be changed by parliament)

Canada Have we always been the “true north strong and free.” Examples? John Diefenbacker “I am a Canadian, free to speak without fear, free to worship in my own way, free to stand for what I think right, free to oppose what I believe wrong, or free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.” Pierre Trudeau – wanted a “just society” and rights entrenched

Background The Canadian Charter of Rights and Freedoms was entrenched (safeguarded) in the Canadian Constitution on April 17, 1982. Why did it take so long? This means that our rights and freedoms are protected by the constitution. However, courts do the interpreting since definitions are not provided. The Charter applies to every level of government and overcomes the limitations of the previous Bill of Rights. Also, it can only be changed by using the amending formula. Most rights are not absolute; can be limited but this must be justified.

Reasonable Limits Clause Section 1 of the Charter is the Reasonable Limits Clause. The provision (clause) in the Charter stating that the Charter rights and freedoms are not absolute, so they can be limited if there is justification. Courts usually decide what "reasonable" means on a case by case basis. E.g. a person's freedom of expression may be limited if they are promoting hate speech. Examples of reasonable limits Hate Propaganda– Alberta high school teacher believed that the infringement could be justified Obscenity laws – infringe on freedom of expression - Burden of proof R. v. Oakes, 1986 – page 39

Analyzing a Charter case A simple four step guide to analyzing a potential Charter case: Does the Charter apply to the case? Has a right or freedom in the Charter been infringed upon? Does Section 1 (the reasonable limits clause) justify the infringement? If not, is there a remedy provided by the Charter? Page 39 R. v. Oakes, 1986 CanLII 46 (SCC) – 4 questions Burden of Proof The onus of brining forth proof (evidence to prove someone’s legal argument to the court.

The Notwithstanding Clause Section 33 of the Charter, also referred to as the "overriding clause" and the "opt-out clause" This clause allows governments to enact or maintain laws notwithstanding (or in spite of) the fact they may violate rights and freedoms in the Charter. If a government uses this clause, the law they are enacting must be reviewed every 5 years. Clause only applies to freedoms (s.2), legal rights (s.7-14) and equality rights (s.15). What do you think? Do you like the “notwithstanding clause”? Why or why not? Provinces – allows tem to opt out of certain sections of the Charter for a period of time. Quebec – language laws

Questions: Case R. v. Oakes Pg. 39 Review Your Understanding Pg. 40

Fundamental Freedoms Section 2 - 4

Fundamental Freedoms Section 2 of the Charter explains the basic freedoms provided to all Canadians. These are fundamental freedoms: Freedom of Conscience and Religion Freedom of Thought, Belief, Opinion, and Expression Freedom of Peaceful Assembly Freedom of Association

Conscience and Religion Freedom of… Conscience and Religion Everyone in Canada is free to practice and follow their religion or faith. No one can be forced to act in a way that violates their religious beliefs. R.v.Big M Drug Mart, 1985 Multani v. Commission scolaire Marguerite-Bourgeoys, 2006

Thought, Belief, Opinion, Expression Includes all forms of communication and expression (e.g. speech, media, film, arts) This freedom may be limited if a person promotes hate or discrimination…advertising R. v. Keegstra, 1990 (hate propaganda) R. v. Butler, 1992 (obscene material) Canada v. JTI-Macdonald Corp., 2007 (smokes - advertising)

Freedom of… Peaceful Assembly Usually associated with the right to participate in peaceful demonstrations Environmental, workers/labour, social justice, community/dump. Under s67 of the Criminal Code, where a riot involving 12 or more people is in progress, a justice, mayor, sheriff or other designated official is authorized to order the rioters to disperse in the name of the Queen. In popular terms, this is "reading the Riot Act. http://www.thecanadianencyclopedia.ca/en/article/riot/

The 2011 Vancouver Stanley Cup riot was a public disturbance that broke out in the downtown core of Vancouver, British Columbia, Canada on Wednesday, June 15, 2011. The riot happened immediately after the conclusion of the Boston Bruins' win over the Vancouver Canucks in game seven of the Stanley Cup Finals, which won the Stanley Cup for Boston. At least 140 people were reported as injured during the incident, 1 critically;[1][3] at least 4 people were stabbed, 9 police officers were injured, and 101 people were arrested that night.[6][7] In July 2015, four years after the riot, police finished their investigation and recommended the final charges against two suspects, bringing the total to 887 charges laid against 301 people.

Association Refers to the right of individuals to join together in groups (e.g. political parties, unions, clubs) SCC has expanded the interpretation of freedom of association. Recognizes workers’ right to collective bargaining. Any law or government action that interferes with collective bargaining violates freedom of association under the Charter. In January, the Supreme Court struck down the law that prevented some public-sector employees from striking. The court also gave Saskatchewan one year to enact new legislation and made clear that any new law had to be fair to workers.

Democratic, Mobility and Legal Rights Section 3,4,5 Section 6 Section 7 - 14

Democratic and Mobility Rights Democratic Rights Sections 3,4, and 5 of the Charter Definition: right of citizens to vote Also guarantees that an election must be held every five years, 18 years of age to vote, provides that the federal Parliament and provincial legislatures must sit at least once every 12 months.

You be the judge 1918 – women 1947 – Chinese/Japanese 1960 – Aboriginal 1970 – 18 year olds 2000 – homeless people too Should prisoner’s be allowed to vote? What are the restrictions on voting? Age Mental capacity Residence Registration certain groups are restricted

Mobility Rights Section 6 of the Charter Definition: right to enter and leave Canada; right to move between provinces and territories Permanent residents have the rights to enter or remain in Canada as long as Canada’s immigration laws are followed. Charter does allow provincial governments to impose restrictions on mobility rights. Lower than average employment rates can prevent citizens from other provinces coming to look for work. Tuition?

Legal Rights Sections 7–14 Definition: Charter sections that protect personal and procedural rights in the criminal justice system Remedy: the way in which a wrongdoing is fixed by the court or other judicial body. Section 7: Life, Liberty, Security of the Person Section 8: Search and Seizure Section 9: Detention or Imprisonment Section 10: Arrest or Detention Section 11: Criminal Proceedings Section 12: Treatment or Punishment Section 13: Self-Crimination Section 14: Right to an Interpreter

Life Liberty and Security – most controversial Present necessary evidence to the defence (R. v. Stinchcombe, 1991) Abortion Laws (R. v. Morgentaler, 1998) Chaoulli v. Quebec, 2005 – failing to provide public health care of a reasonable standard within a reasonable time violated section 7 Rodriguez v. British Columbia, 1993, CanLII 75 (SCC) – Case Search and Seizure Section 8, right to be secure against an unreasonable search and seizure High school - random drug searches R. v. A.M., 2008 R. v. Mann, 2004 – Case R. v. Tessling, 2004 - Case

Detention – reasonable limit on a person’s rights to protect society ? Section 9 “everyone has a right not to be arbitrarily detailed or imprisoned” Do you think it is reasonable for police officers to stop drivers randomly to check for driving under the influence of alcohol or drugs? Detention – reasonable limit on a person’s rights to protect society ? R. v. Hufsky, 1988 Arrest Section 10, right to be informed/language; right to consult a lawyer; and allows a court to determine if a person was held in custody legally – lawful detention Anti-Terrorism legislation! Charkaoui v. Canada, 2007 – Case (balance individual rights with national security) Arbitrarily – means not having a sufficient legal reason for stopping or restricting someone's movement or putting him or her in jail. Detain someone does not necessarily mean to imprison or put him or her in jail. Liberty is restricted, you are detained.

Rights on Being Charged with an Offence Cruel and Unusual Treatment or Punishment Self-Incrimination and Interpreter Rights

Looking Back – The Charter Since 1982

Section 15 Section 16 – 22 Section 23 Equality Rights, Official Languages, Minority Language Education Rights Section 15 Section 16 – 22 Section 23

Equality Rights Section 15 of the Charter Definition: Protection from discrimination Specific grounds for discrimination include: race, ethnic origin, colour, religion, gender, age, mental or physical disability, and (most recently) sexual orientation. A controversial equality issue in recent years has been equal rights for same-sex couples. Andrews v. Law Society of BC, 1989 Vriend v. Alberta, 1998 M. v. H., 1999

“Equality does not necessarily mean that everyone should be treated the same.” Do you agree/disagree? What do you think this quote means?

Language Rights Sections 16–22 of the Charter Definition: protection of Canada's official languages in all government institutions Canada's two official languages are English and French. These sections guarantee that both languages have equal importance in government matters. Canadian laws must be printed in both French and English.

Minority Language Section 23 Guarantees rights for minority language education. Canada official languages, French and English. Only apply to Canadian citizen. Education is a provincial matter Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1 (CanLII) - Case

Section 24 (1-2) Enforcement and exclusion of evidence

General Section 25 – 31 - aboriginal rights - Multicultural heritage - Rights and freedoms = male/female

Aboriginal Rights Section 25 of the Charter guarantees the existing rights of Aboriginal peoples (e.g. treaty rights). Aboriginal issues are often argued in the courts. Some of the more common issues: right to hunt and fish land claims desire for self-government Courts are tasked with interpreting the meaning of the law. Constitutional protections for aboriginals are found in section 35 of the Constitution Act, 1982.

Multicultural Section 27 Recognizes the multicultural nature of Canada. Ethnic backgrounds and have variety of needs. Courts and governments must consider these varying cultural backgrounds at all times.

Application of Charter Section 32 Section 33 (notwithstanding clause)

Constitution Act 1982 (section 52) Charter Section 24 - Enforcement Remedies Constitution Act 1982 (section 52) Charter Section 24 - Enforcement

Section 52 of the Constitution Act, 1982 Enforcing The Charter Section 52 of the Constitution Act, 1982 This section provides the courts and governments with these three remedies if legislation/law is found to be unconstitutional: Strike down – a court ruling that a law violates one or more Charter rights and therefore is invalid. Read down – a court ruling that a law violates one or more Charter rights and part of it needs to be changed or amended. Read in – a court ruling that a law needs to be changed or amended, but that the law is still constitutional. Infringed: broken or violated, as in an agreement or right that is infringed.

Enforcing The Charter contd… Section 24 of the Charter This section allows anyone who believes their rights have been infringed to apply to a court for a remedy. Infringed – violated or broken Remedy – a method for a person to enforce his/her rights in court Evidence not to be submitted

Courts and the Legislature Governments are elected to pass and change laws (federal/provincial/territorial) BNA, 1867 – courts decided who had the power to enforce the laws/division of powers by level of government, since the Charter, the courts also decide whether or not these laws or government actions are unconstitutional. Our courts have the power to interpret these laws and decide whether or not they are constitutional (Do they violate the Charter?) Sometimes the courts have been accused of taking too much power away from the elected legislatures. Judicial activism occurs when judges put their own views and values into court judgments.

Issue: Do the courts have too much power compared to legislatures? Page 66-67