1. The Canadian Charter of Rights and Freedoms
Chapter 2
The Canadian Charter of Rights and Freedoms

2. Background
The Canadian Charter of Rights and Freedoms was entrenched (safeguarded) in the Canadian Constitution on April 17, 1982.
This means that our rights and freedoms are protected by the constitution.
The Charter applies to every level of government and overcomes the limitations of the previous Bill of Rights.
Most rights are not absolute; can be limited but this must be justified.

3. Reasonable Limits Clause
Section 1 of the Charter is the Reasonable Limits Clause.
Rights and freedoms may be limited if the limitation can be justified in a free and democratic society.
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.

4. 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?

5. 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.

6. 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 and Association

7. Conscience and Religion Thought, Belief, Opinion, Expression
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.
Thought, Belief, Opinion, Expression
Includes all forms of communication and expression (e.g. speech, media, arts)
This freedom may be limited if a person promotes hate or discrimination.

8. Freedom of… Peaceful Assembly
Usually associated with the right to participate in peaceful demonstrations
Association
Refers to the right of individuals to join together in groups (e.g. political parties, unions, clubs)

9. Democratic 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

10. Democratic
Sections 3: 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.
To vote in a Canadian federal election you must be:
A Canadian citizen (Temporary and permanent residents cannot vote);
18 years old or older on election day;
Residents in the electoral district; and
Registered on the Voters List (also called the list of electors).

11. Democratic
Sections 4: (1) No House of Commons and no legislative assembly shall continue for longer than five years
(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years

12. Democratic
Sections 5: There shall be a sitting of Parliament and of each legislature at least once every twelve months. 

13. Democratic

14. Democratic Compare Canada to India….
A democratic government has to be periodically elected by the people in a free and fair manner.
Rights in Saudi Arabia are intended to be based on the Hanbali Islamic religious laws under absolute rule of the Saudi royal family. No vote there…recently a Crown Prince killed some relatives and arrested more than 100 others…he extorted about billion $ from them…guess who’s in charge now!

15. Mobility Rights Section 6 of the Charter
Definition: (1) right to enter and leave Canada;
(2)right to move between provinces and territories
(a) take up residence in any province; and
(b) to pursue the gaining of a livelihood in any province.

16. Legal Rights Sections 7–14
Definition: Charter sections that protect personal and procedural rights in the criminal justice system
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

17. Legal Rights
Section 7: Everyone has the right to life, liberty and security of the person.
Section 8: Everyone has the right to be secure against unreasonable search or seizure.
Section 9: Everyone has the right not to be arbitrarily detained or imprisoned.

18. Legal Rights
The Canadian Charter of Rights and Freedoms gives certain rights to people detained or arrested.
If the police deny a person these rights, the evidence gathered during the detention or arrest might not be allowed in court.
Section 24(1) states that anyone whose Charter rights or freedoms have been infringed upon or denied may apply obtain a remedy that is “appropriate and just in the circumstances”.

19. Legal Rights Section 10: Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons for the arrest
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

20. Legal Rights The first right according to Section 10…
(a) to be informed promptly of the reasons for the arrest
People detained or arrested have the right to know the reasons for the detention or arrest right away.The police must explain the reasons in clear and simple language.
Why???

21. Legal Rights
This information helps people detained or arrested know how serious the situation is. They can then make an informed decision about their other rights. For example, they can decide to speak to a lawyer, and can remain silent when questioned by the police.

22. Legal Rights The second part of Section 10…
(b) to retain and instruct counsel without delay and to be informed of that right
The police must follow these steps:
inform people detained or arrested of the right to speak to a lawyer of their choice  
tell them that they can get help from a legal aid lawyer at no cost if needed and about on-call lawyers who offer free telephone consultations 24 hours a day AND stop questioning them and trying to obtain information as long as they have not had a reasonable chance to talk to their lawyers  

23. Legal Rights
As soon as possible after arresting someone, the police must…
help the person find a lawyer, for example, by giving the person access to a telephone book or directory
let the person speak to his lawyer in private in a room where they will be overheard

24. Legal Rights
People detained or arrested have the right to consult a lawyer only once. But the police must let them consult a lawyer more than once if it is necessary for them to really exercise their rights. Here are some examples:
The first lawyer they contacted is unable to advise them.
The circumstances have changed and the person detained or arrested is suspected of a more serious crime (e.g., drug trafficking instead of possession of drugs).
The police want to use another method of investigation (e.g., a lie detector). Note…polygraph results are not admissible as evidence in court!!!

25. Legal Rights
The right to speak to a lawyer does not include the right to have a lawyer present during police questioning. However, the lawyer can be present if everyone agrees to it.
People detained or arrested can give up the right to speak to a lawyer, but they must be fully aware of all consequences of this decision. 

26. Legal Rights
People detained or arrested have a right to remain silent. In fact, the police must inform people of this right.
The purpose of the right to remain silent is to prevent people detained or arrested from hurting their cases by helping the police. As a general rule, when people choose to remain completely or partially silent, this cannot be interpreted as a sign that they are they are guilty. In Canada, people are presumed innocent until found guilty based on the evidence. (Sec. 11d)

27. Legal Rights
Section 11 (e) not to be denied reasonable bail without just cause;
(f) to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; Double Jeopardy

28. Legal Rights
Section 11: (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
Sect 12: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Section 13: right not to provide self incriminating evidence.
Section 14: A party or witness in any proceedings who does not understand or speak the language or who is deaf has the right to the assistance of an interpreter.

29. 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.

30. 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.

31. 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
The Royal Proclamation 1763 is referred to!

32. 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 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.

33. 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

34. Courts and the Legislature
Governments are elected to pass and change laws.
Our courts have the power to interpret these laws and decide whether or not they are constitutional (Do they violate the Charter?)
Judicial activism occurs when judges put their own views and values into court judgments. So…do judges have too much power under the Charter???