1. THE PROTECTION OF DEMOCRATIC AND HUMAN RIGHTS IN CANADA

2. Canadian Charter of Rights and Freedoms
Contained in Part I, Schedule B of The Constitution Act 1982
The Charter consolidated other Canadian laws that protected rights and freedoms, such as the Canadian Bill of Rights 1960
Rights are entrenched ie the Charter can only be changed by a successful referendum
The Charter is interpreted by Canada’s Superior Court – The Supreme Court

3. Entrenchment
2 competing philosophies on entrenchment of rights in a Constitution:
For entrenchment – ensures that the courts have the final word in interpreting provisions
Against entrenchment – parliament and the legislatures should have the last word
Successful referendum – achieved when the federal parliament, and 7/10 provincial legislatures agree. The population of those 7 provinces must also make up at least 50% of the total population of Canada. (only 2 successful referenda since 1982)

4. Protected rights: An extensive list of express rights protected:
Fundamental freedoms (s.2) -
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
freedom of association

5. Protected rights: Democratic rights (ss.3-5) –
Right to vote in parliamentary elections (federal, provincial or territory elections)
Maximum term of parliament is five years, without re-election
Parliament is to sit at least once a year

6. Protected rights: Mobility rights (s.6) –
Canadian citizens have the right to enter, remain in and leave Canada
Right to take up residence and pursue their livelihood in any province
Note: some limits have been placed on this right by extradition laws. Also, some provinces can have programs to benefit their residents.

7. Protected rights: Legal rights (ss.7-14) -
to life, liberty and security of the person
to be secure against unreasonable search or seizure
not to be arbitrarily detained or imprisoned
on arrest eg informed of reasons, to instruct counsel
trial rights eg presumption of innocence, right to silence, fair trial, trial by jury for serious offences, protection from double jeopardy

8. not to be subject to any cruel and unusual treatment or punishment
right against self incrimination
right to an interpreter for language or hearing reasons

9. Protected rights: Equality rights (s.15)–
Every individual is equal before and under the law, without discrimination based on race, ethnicity, colour, religion, sex, age, or disability
Duality of languages (ss.16-23) –
equality of status and equal rights to use either English or French in parliament, government, court
right to be educated in either language

10. Application of The Charter
The Charter protects individuals and corporations from violations of their human rights and fundamental freedoms by government or the state
Its provisions apply to the parliament and government of Canada and to the legislature and government of each province (s.32), but NOT to private individuals, businesses and other organisations

11. Processes used to protect rights:
Pre-legislative scrutiny – bills must be considered by both the Minister for Justice and the standing committee of each house to determine their compliance with the Charter
Interpretation and enforcement of The Charter by courts, who must consider the rights of Aboriginal people, gender equality, and protection of multicultural character when interpreting (+see next slide)
Dialogue between parliament and the courts is encouraged and the Supreme Court can be called upon to offer advisory opinions to parliament on the validity of proposed legislation
Remedies are available to individuals from the courts if their rights are infringed (see further slides)

12. Interpretation & Enforcement by Courts
The Supreme Court interprets the words of the Charter when hearing cases before it.
s.52 of the Canadian Constitution gives the courts the power to rule a particular law or section invalid if it violates the Charter.
BUT, Parliament can pass legislation with the stated intent of overriding some rights (fundamental freedoms, legal and equality rights) otherwise protected in the Charter. An exemption from the Charter lasts five years.

13. Government’s ability to limit the Charter’s rights
s.1 – limiting clause
► Other laws may limit the rights and freedoms in the Charter so long as these laws are reasonable and justified in a free and democratic society
s.33 – notwithstanding clause
► Parliament can make a particular law exempt from the Charter (except democratic and mobility rights), if it expressly states which sections of the Charter do not apply; exemption lasts for 5 years. Note: this is very rare, and not politically popular, but it does ensure that parliament (rather than the courts) has the final say on important matters of public policy.

14. Remedies available through courts
3 kinds of requests can be made to courts by an individual if their rights are infringed:
A remedy that is “appropriate and just in the circumstances” eg stop proceedings if right to fair trial is being denied (s.24)
Evidence collected against the Charter (eg through an improper search) not be used in court, as it would “bring the administration of justice into disrepute” (s.24)
Ruling that a law violates the Charter and therefore has no force. (s.52 of the Constitution)

15. Comparison with Australia
Differences
Canadian Charter has a more extensive list of express rights than is contained in the Australian Constitution
Rights protection in the Constitution applies only to federal parliament – in Canadian Charter it applies to both federal and provincial parliaments
Similarities
Both the Australian Constitution and Canadian Charter contain express rights that are entrenched
Rights can only be changed by a successful referendum (process stated in Constitution)

16. Comparison with Australia
Similarities
Rights are fully enforceable by the courts ie courts can declare legislation invalid that violates protected rights, which parliament cannot override. In Aust this applies to all rights; in Canada applies only to mobility and democratic rights
Differences
Canadian parliament can override a court order declaring a law invalid for infringing a fundamental freedom, legal or equality right. Such legislation needs to state which particular right it is overriding. 5 year limit.
Limiting clause in Canadian Charter, but no such limitation in Australia

17. Comparison with Australia
Differences
Canadian Supreme Court can be called upon to give advisory opinions as to validity of proposed legislation – High Court of Australia cannot. Dialogue between parliament and courts is encouraged in Canada
When declaring legislation invalid the Canadian courts can award remedies eg damages to the wronged party – Australia merely declares legislation invalid – a separate action is required is a remedy is sought
Similarities
Pre-legislative scrutiny in both countries – both with justice ministers and standing committees at the federal level – to make sure legislation is not contrary to protected constitutional rights

18. Comparison with Australia
Differences
Canadian courts can exclude evidence obtained in violation of the Charter – no similar provision exists in Aust.
Canadian courts can make appropriate remedies where rights have been infringed. In Australia, plaintiff would need to pursue a separate case.

19. Further resources
- copy of the Charter on Canadian Department of Justice website
- copy of the Charter plus discussion of sections on Department of Heritage website
- discussion on the sections of the Charter

20. VCAA Information Study Design: Key Knowledge Outcome 2:
a comparison with the approach adopted for the constitutional protection of democratic and human rights in one of the following countries: UK, USA, Canada, NZ or South Africa
Study Design: Key Skills Outcome 2:
Define key legal concepts and use appropriately
Evaluate perspectives on relevant legal concepts
Interpret key legal documents and comment on significance
Discuss, interpret and analyse legal info and data

21. VCAA Information 2006 question:
‘The approach adopted for the constitutional protection of democratic and human rights can differ between countries.’
Compare Australia’s approach with the approach of one of the following countries: the United Kingdom, the United States of America, Canada, New Zealand, South Africa. (4 marks) (Q8b)

22. VCAA Information
2007 Question: ‘Australia’s approach to the constitutional protection of democratic and human rights is different from, and not as effective as, the approach adopted in the UK, the USA, Canada, NZ and South Africa.’ Compare Australia’s approach to the constitutional protection of democratic and human rights with the approach adopted in one of the countries listed above. In your answer, evaluate how effective the Commonwealth of Australia’s Constitution is in protecting democratic and human rights (8 marks)

23. VCAA Information 2008 question:
Using one of the countries listed below, explain two ways in which that country’s approach to the constitutional protection of democratic and human rights is similar to, or different from, the approach provided by the Commonwealth Constitution of Australia.
(In your answer you may explain two similarities or two differences, or one similarity and one difference.)