The Canadian Charter of Rights and Freedoms

Chapter 4Page 92

A right is an entitlement that belongs to all people simply because they are human beings.

Freedom is the ability to live our lives as we see fit, knowing that our government has passed laws and enforces them in order to protect us.

Recognizing Rights and Freedoms (historically)

• 1215 – Magna Carta

• 1869 – Bill of Rights gave the British elected Parliament supremacy over the monarchy and added some freedoms like the freedom from cruel and unusual punishment.

• 1776 – Declaration of Independence (USA)• 1789 – Declaration of the Rights of Man

(France)Both of these recognized that all people have natural rights and gave to their citizens the inalienable rights to equality and liberty.

An inalienable right is one which can’t be taken away, even by passing a law.

• 1948 – Universal Declaration of Human Rightsprovided for the same inalienable rights and added the fundamental freedoms of:thought,opinion,expression,conscience,religion,peaceful assembly, and association.

Evolution of Rights in Canada

• See pages 94 and 95, Figure 4-1• Do question 2 a and b page 97.

Post Universal Declaration of Human Rights

Historically, Canadian courts upheld the rights of Canadians using the British Bill of Rights (1869) and common law.

After the adoption of the Universal Declaration of Human Rights, the provinces and the federal government attempted to bring their human rights in line with the Declaration.

The Canadian Bill of Rights

• 1960 – The Canadian Bill of Rights

Three problems:1. Only federal departments, agencies or Crown

Corporations2. Just another statute3. Could be changed by simply an act of Parliament

The Charter of Rights and Freedoms entrenched our rights and freedoms.

Entrench – to protect and guarantee a right or freedom by ensuring that it can only be changed by an amendment to the Constitution. This amendment requires that federal, territorial and provincial governments agree.

The Charter means that governments cannot pass laws that infringe (go against) our rights and freedoms and that those people or agencies that “work for” the government can’t behave in a way that violates our rights.

The Charter is supreme and all laws have to conform to it.

BUT… Look at section 33

Trudeau and the Charter

http://www.youtube.com/watch?v=ngYEcae6ndE&feature=related

Jurisdiction (To whom does the Charter apply?)

The charter applies to all branches and levels of government. No law can be passed; no action can be taken by an “agent of the state” that infringes on our Charter rights and freedoms except under certain circumstances.

Enforcement (who enforces the Charter?)

Section 24 (1) of the Charter gives people the right to challenge the government in court if they think their rights or freedoms have been violated by the various governments of Canada.

The judge ultimately decides if a right or freedom has been violated and what to do about it (the remedy).

The Supreme Court of Canada has become the guardian of our rights and freedoms.

If someone says to the Court that his or her Charter rights were violated, to decide if that is true, the Court first asks 3 questions:

1. Was a right infringed by the government or an agency of the government?

2. Is the particular right covered by the Charter?

3. Is the violation or infringement within a reasonable limit (section 1)?

To decide if the infringement of a right is “within a reasonable limit” under section 1, the Court uses a 4-part test that it developed in 1982. It is called the “Oakes Test”, named after the case in which it was first used.

The Oakes Test (page 100)

1. Is the reason for limiting a Charter right important enough to justify limiting the right?

2. Is there a logical connection between the limitation of the right and the goal of the law?

3. Is the right limited as little as possible?

4. The more severe the limitation of the right, the more important the goal of the law must be.

Homework

Page 99, Read the case and answer questions 1 and 2.

Page 101, Questions 1 to 6

The Charter Section 2 – Fundamental Freedoms

Section 3, 4, 5 – Guarantee democratic governmentSection 6 – Mobility rights (right of Canadians to enter Canada and to move from province to province)Sections 7 to 14 – Legal rightsSection 15 – Equality rightsSection 16 – 22 Language and mobility rights.

To work on in class and hand in at the end (or finish for homework & hand in next day) – 15 marks

• Freedom of thought and expression and freedom of religion:– Read case on page 105 and answer questions 1 to 3.– Read additional case “Singh” and answer questions 1 &

• Democratic freedoms:– Read case on page 108 and answer questions 1 to 3.

• Mobility rights:– Is it OK that some universities charge more for students from other

provinces? Why?– You are a newly qualified lawyer, a member of the NB Law Society.

You are moving to Ontario. You learn that you have to do your bar admission course all over again and write the exams. This costs $2400 and will take you 6 months. Is this fair? Why or why not?