1. THE CHARTER OF RIGHTS AND FREEDOMS AND THE COURTS
CLN4U: Unit 2
(Chapter 5)

2. Evolution of the Charter
English Common Law
Based on customs and traditions
Established the principle of parliamentary supremacy (legislative branch is the highest law-making body in the country)

3. Evolution of the Charter
Canadian Bill of Rights (1960)
Codified the basic rights of Canadians
The Bill of Rights had limited impact because:
It was an ordinary statute and could be changed easily by parliament (it was not entrenched in the constitution)
It only applied to areas of federal jurisdiction and not to areas of provincial jurisdiction
It did not carry the legal power of constitutional law

4. Evolution of the Charter
The Victoria Charter
Proposed to “entrench” the Charter of Rights in the constitution, as well as to patriate the constitution from the U.K.
Quebec would not accept the terms (they wanted stronger French language rights included), and did not agree to support the new charter

5. Evolution of the Charter
Charter of Rights and Freedoms
Entrenched in the Constitution Act 1982, therefore is part of the “supreme law of the land”
Protects Canadians at all levels of government jurisdiction
Canadians can challenge any law that conflicts with their rights through the court system.

6. Key aspects of the Charter
Section 1
Sets “reasonable limits” on all rights and freedoms guaranteed under the Charter
These limits must be important, as well as reasonable and justifiable for the benefit of society.
These benefits (to society) must be greater than the harm resulting from the violation of the right, and the law must interfere as little as possible with the right or freedom in question.

7. Key aspects of the Charter
Protection of Rights and Freedoms
Fundamental freedoms
Democratic rights
Mobility rights
Legal rights
Equality rights
Official language rights
Minority language rights

8. Key aspects of the Charter
Limits on Applying the Charter
The Charter applies only to the public sector (all levels of government), and not to relationships between private citizens.
Any violation of the Charter may be justified under section 1.
Section 33, the “notwithstanding” clause, allows legislatures (Federal or Provincial) to override charter rights by passing legislation that may violate one or a group of rights.

9. Key aspects of the Charter
The Role and Power of the Courts
Judges are appointed by governments.
Supreme Court justices are appointed by the Prime Minister.
Some people believe that this process is undemocratic; especially since the courts have more power to interpret laws and force changes in the law.
Does this power threaten the democratic legislative process?

10. Some Important Cases R v. Oakes, [1986] 1 SCR 103
Tested the right to be “innocent until proven guilty”
R v. Keegstra, [1990] 3 SCR 697
Tested the limits of “freedom of expression”
M. v. H., [1999] 2 SCR 3
Tested “equality rights” with same sex marriage.