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

2. 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

3. 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Historical Documents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)

4. 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

5. Background
The Canadian Charter of Rights and Freedoms was entrenched (safeguarded) in the Canadian Constitution on April 17, 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.

6. 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

9. 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.

10. 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

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

13. Fundamental Freedoms
Section 2 - 4

14. 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

15. 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

16. 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)

17. 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.

18. 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, 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.

19. 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.

20. Democratic, Mobility and Legal Rights
Section 3,4,5
Section 6
Section

21. 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.

22. 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

23. 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?

24. 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

25. 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, Case

26. 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.

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

28. Looking Back – The Charter Since 1982

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

30. 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

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

32. 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.

33. 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

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

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

36. 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.

37. 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.

38. Application of Charter
Section 32
Section 33 (notwithstanding clause)

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

40. 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.

41. 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

42. 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.

43. Issue: Do the courts have too much power compared to legislatures?
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