The Canadian Charter of Rights and Freedoms

What does the Charter do?• The Charter of Rights and Freedoms protects the

rights of the individual by limiting the actions of the government

• The Charter does not apply to private matters

Jurisdiction Section 32• Defines the relationship between people,

organizations, and companies in Canada & the government

• Applies to all federal & provincial governments & their organizations

• Does not apply to issues between citizens• See provincial human rights codes

Enforcement Section 24• The Supreme Court of Canada is responsible for

interpreting and enforcing the terms of the Charter

• If you believe your Charter rights have been infringed or violated by the government you have the right to challenge the government in court

• Must be violated by government or its agencies• The violated right must be covered under the charter• The violation or infringement must not be within a

reasonable limit

Guarantee Section 1• The Charter guarantees the R&F set out in it

• Subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

• i.e. if a province wants to pass a law that limits a Charter right, it must prove that this limitation can be justified in a free & democratic society

• R. v. Oakes Criteria for Reasonable Limits (The Oakes Test)

The Oakes Test

• R. v. Oakes Criteria for Reasonable Limits:• The reason for limiting the Charter must be shown to be

important enough to justify overriding a constitutionally protected right• The measure carried out to limit the right must be reasonable

and logically connected to the objective for which it was enacted• The right must be limited as little as possible• The more severe the rights limitation, the more important the

objective must be

“Reverse Onus” against Oakes was dismissed

The Fundamental Freedoms Section 2• Everyone has the following fundamental

freedoms:• A) freedom of conscience and religion• B) freedom of thought, belief, opinion and expression,

including freedom of the press and other media of communication• C) freedom of peaceful assembly; and• D) freedom of association

• Reasonable limitations are necessary (so as to not infringe on other people’s rights)

Conscience & Religion Section 2 A• You have the right to entertain the religious beliefs

you choose• The right to declare these beliefs openly without fear• To express your religious beliefs through practice,

worship, teaching, and dissemination

• Noone can be forced to act in a way contrary to one’s beliefs or conscience• Except, a child’s right to survival comes first in the eyes

of the law

• Calgary teen to appeal transfusion ruling (p. 87)• Was this limitation on the rights within a reasonable limit?

Thought, Belief, Opinion Section 2 B& Expression, Press & Media

• You are free to think and believe what you want and to publicly express your opinions through writing, speech, painting, photography, and other means

• Key element in a democracy, and rarely restricted

• Media are seen as the means for communicating information to the public & as a forum for speaking out on issues

• R v. Robin Sharpe (p. 88, Fig. 4.6) - What do you think??

• Article read

Peaceful Assembly Section 2 C• The freedom to assemble for peaceful purposes• i.e. demonstrating against a government action or

marching for a cause

• Peaceful• Lawful VS unlawful assembly

• Unlawful assembly or riot• 12 or more persons• Disturbs the peace tumultuously• Causes fear in persons nearby

Freedom of Association Section 2• The ability to connect with other people or groups• i.e. unions, political parties, cultural groups, educational

organizations, or sporting clubs

• But… young offenders may be ordered not to associate with certain friends• Or… convicted sexual offenders may not be allowed to

associate with youth or go near schools• Prison inmates access is restricted as such freedoms would

undermine discipline and security

• Lavigne v. Ontario Public Service Employees Union (p. 89)

Homework!!• (p. 90) #1 – 3

Democratic Rights Sections 3 - 5• The guarantee to democratic government for all

Canadians

• The right to vote

Democratic Rights of Citizens Section 3• The right to vote• “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

• The “Reasonable Restrictions”:• Age, Mental Capacity, Residence, Registration• Members of the Judiciary• Inmates serving more than 2 years

Max Duration of Legislative Bodies S.4• The right to vote & elect a new federal &

provincial government every 5 years, except under extraordinary circumstances

• “No HoC or Legislative assembly shall continue for longer than 5 years from election”

• “In time of real or apprehended war, invasion or insurrection, they may continue beyond 5 years if not opposed by more than 1/3 of the members of the HoC or the LA

Annual Sitting of Legislative Bodies S.5• The right to question government actions and

policy

• “There shall be a sitting of Parliament and of each (provincial) legislature at least once every 12 months”

Mobility Rights Section 6• The right of Canadian citizens to move in and out

of the country and between provinces

• Mobility of Citizens• The right to enter, remain in and leave Canada

• Overridden by Extradition…

• Rights to Move & Gain Livelihood• To move to, reside, and work in any province

• Except for… “reasonable residency requirements as a qualification for the receipt of publicly provided social services”

Mobility Rights• Extradition: surrendering an accused person to

another jurisdiction to stand trial

• Federal Extradition Act: Accused persons can be sent to other countries to face trial because “suppressing crime is of sufficient importance to warrant overriding the constitutionally protected right of citizens to remain in Canada…”

• Except: Canada will not extradite people accused of capital offences to countries where the death penalty is legal as the right to life is of most importance

Homework!!• (P.91 #1, 2)• (P.93 #1, 3)

Legal Rights Sections 7 - 11• Any Canadian who becomes involved with the

criminal justice system is guaranteed certain basic protections under the Charter• Investigating a crime• Trial proceedings• Use of evidence

Legal Rights Sections 12 - 14• Punishment for crimes• Issues related to being a witness at a trial

Legal Rights Section 7• Everyone has the right to life, liberty, and security

of the person• You cannot be deprived of these rights except in

accordance with the principles of fundamental justice

• Straightforward? Maybe not so much…• Right to Life/Security of the Person V. Abortion• “Since a fetus is not a ‘person’, it is not afforded the

protection of the right to life as stated in s.7 of the Charter” – Supreme Court of Canada

• Right to Security of the Person V. Assisted Suicide• Sue Rodriguez lost her case against the Supreme Court

Unreasonable Search Section 8& Seizure

• People will not be subject to unreasonable search & seizure• Police must have a good reason for searching the person,

home, or belongings of an accused• Must be conducted fairly

• The Controlled Drugs & Substances Act, grants the police the power to search any place (except a residence) wehre they suspect drugs are concealed without obtaining a warrant beforehand

Arbitrary Dentention Section 9or Imprisonment

• Everyone has the right not to be arbitrarily detained or imprisoned• Cannot be held for questioning, arrested, or kept in jail by

the police without good reason

Random stop checks can be justified under s. 1 of the Charter

Rights While Under Arrest Section 10or Detention

• Everyone has the right on arrest or detention• To be informed promptly of the reasons therefor• To retain and instruct counsel without delay and to be

informed of that right• To have the validity of the detention determined by way of

habeas corpus and to be released if the detention is not lawful

Proceedings in Criminal Section 11& Penal Matters

• Any person charged with an offence has the right• To be informed without unreasonable delay of the

specific offence• To be tried within a reasonable time• Not to be compelled to be a witness in proceedings

against that person in respect of the offence• To be presumed innocent until proven guilty

according to law in a fair and public hearing by an independent and impartial tribunal• Not to be denied reasonable bail without just cause• If acquitted of an offence, or found guilty, not to be

tried for it again• …

Treatment or PunishmentSection 12• Everyone has the right not to be subjected to any

cruel and unusual treatment or punishment

Self-crimination Section 13• A witness who testifies in any proceedings has the

right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings• except in a prosecution for perjury or for the giving of

contradictory evidence

Interpreter Section 14• A party of witness in any proceedings who does

not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter

Equality Rights Section 15• Gaurantees legal equality to all Canadians• Forbids discrimination based on race, religion, national or

ethnic origin, sex, age, mental or physical disability• Allows affirmative action programs

Official LanguagesSections 16 – 22• Confirms that Canada is a bilingual country and that

citizens have the right to use the official language of his or her choice in Parliament or in any federal court

• Communication with any federal institution may be in English or French, at the wish of the citizen• When there is a sufficient demand for that language in that

service

• Language rights in other laws remain in effect

• These language rights do not exclude rights of other languages

Minority Language Section 23Educational Rights

• People in a minority position in their province are able to have their children schooled in English or French

• The right to have your children schooled in the same language you were schooled in, or if it was their first language learned

• If one of your children is educated in English or French, then all of your children have the right to education in that language

• Only if sufficient numbers demand that minority language so as to receive that instruction provided out of public funds

Enforcement Section 24• Slide 3

General ProvisionsSections 25 – 31• The Charter shall not be interpreted in such a way as

to interfere with native rights (25)• i.e. The Royal Proclamation of 1763, Land Claim Agreements,

etc.

• Rights and Freedoms may exists outside of the Charter (26)• i.e. The Bill of Rights; Provincial Human Rights Codes

• Charter must be interpreted in such a way that supports the multicultural heritage of Canada (27)

• Rights and Freedoms apply equally to males and females (28)

General ProvisionsSections 25 – 31• Nothing in the Charter detracts from any rights

guaranteed to denominational, separate or dissentient schools (29)

• Any references to a Province include Yukon & Northwest Territories (30)

• Nothing in the Charter extendds the legislative powers of any body or authority (31)

Application of CharterSections 32 – 33• 32 – Applies to federal and Provincial

Governments

• 33 – Notwithstanding Clause (concerning sections 2, 7 – 15)

Citation Sections 34• “This is cited as the Canadian Charter of Rights

and Freedoms”

Questions on the Charter…• When is the infringement of a Charter right

justified?

Questions on the Charter…• When is the infringement of a Charter right justified?

• The courts will allow our rights to be justified if all of the following steps are met:• Is it “prescribed by law”? – meaning that the law must be written

in some statute

• Does it have a “clearly justified objective”? – the general objective being sought must be sufficiently important to justify overriding the Charter. There must be a purpose for violating our rights – is it more important than the violation?

• Does it employ a “clearly justified means”? – the means must be carefully designed to impair as little as possible & not cause more harm that it avoids

Questions on the Charter…• If you believe one of your Charter Rights has been

overridden, what can you do?

Questions on the Charter…• If it is established that a Charter violation has

occurred, how can it be redressed?

Questions on the Charter…• If it is established that a Charter violation has

occurred, how can it be redressed?

• Invalidating legislation that offends the Charter• The law in question will cease to be used in future

• Compensation for the victim

• Evidence may be excluded from a criminal trial

Case Studies: Legal & Illegal Searches in Schools

Case Studies: Legal & Illegal Searches in Schools

Case Studies: Legal & Illegal Searches in Schools

Case Studies: Legal & Illegal Searches in Schools

Case Studies: Legal & Illegal Searches in Schools

Case Studies: Legal & Illegal Searches in Schools

Legal Rights in a Nutshell…

Legal Rights in a Nutshell…

Charter Warning

Official Warning