The Charter of Rights and Freedoms

1
The Charter of Rights and Freedoms

• Douglas Brown
• Pol Sci 220
• January 2007

2
The Charter of Rights and Freedoms

• Third pillar of Constitutional System in Canada
  (after Parliament and Federalism)
• A Late Addition 1982
• Site for a new politics of rights
• Parliament vs. Courts new tensions
• Americanization?

3
Rights and the Constitution in Our History

• Importance of English common law and conventional
  practice
• Our legacy of rights
• Magna Carta, 1213
• Bill of Rights, 1689
• UN Declaration, 1948
• Canadian Bill of Rights, 1960
• Also influential
• US Bill of Rights, 1789
• European Convention, 1950 and Europe Social
  Charter, 1989

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Magna Carta, art. 39

• No free man shall be arrested, or imprisoned, or
  deprived of his property, or outlawed, or exiled,
  or in any way destroyed, nor shall we go against
  him or send against him, unless by legal
  judgement of his peers, or by the law of the
  land.

5
Canadian Charter of Rights and Freedoms-- What
rights are included --

• S. 2 fundamental freedoms
• Ss. 3-5 democratic rights
• S. 6 mobility rights
• Ss. 7-14 legal rights
• Ss. 15 equality rights
• Ss. 16-23 minority language rights

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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
• d) freedom of association

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Sections 3-5 Democratic rights

• Right to vote
• Five-year maximum term for federal and provincial
  legislatures
• Provision for emergency extension of parliaments
  term
• A sitting of Parliament/ legislatures at least
  once a year

8
Sections 7-14 Legal rights

• 7. Everyone has the right to life, liberty and
  security of person and the right not to be
  deprived thereof except in accordance with the
  principles of fundamental justice.
• 8. secure against unreasonable search or seizure
• 9. not to be arbitrarily detained
• 10. on arrest, prompt reasons, retention of
  counsel, right to habeas corpus

9
Legal rights, continued

• 11. proceedings in criminal matters with rights
  to be informed of offence, tried within a
  reasonable time, not compelled to witness against
  yourself, presumption of innocence, reasonable
  bail, etc.
• 12. no cruel or unusual punishment
• 13. no incrimination of witnesses
• 14. the right to interpretation

10
Equality rights

• 15. (1) Every individual is equal before and
  under the law and has the right to the equal
  protection and equal benefit of the law without
  discrimination based on race, national or ethnic
  origin, colour, religion, sex, age or mental or
  physical disability.
• (2)..does not preclude any law, programthat has
  as its object the amelioration of conditions of
  disadvantaged individuals or groups

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Sections 16-22 Language rights

• English and French as official languages for
  federal Parliament and government,
• Right to use either language in parliament
• Right to use either language in federal courts
• Right to communicate with federal public service
  in either language
• Similar rights in New Brunswick

12
Section 23 Minority Language Education Rights

• Right to have children receive primary and
  secondary education in the minority language in a
  province, where numbers warrant
• if parents mother tongue was the minority
  language
• if parents went to primary school in Canada

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Canadian Charter of Rights and Freedoms--
Interpretation and Enforcement --

• S.1 Guarantee and limitations
• S. 24 enforcement
• S. 25 non-derogation of Aboriginal rights
• S. 28 equality of application to men and women
• S. 33 notwithstanding legislative override

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Section 1

• 1. The Canadian Charter of Rights and Freedoms
  guarantees the rights and freedoms set out in it
  subject only to such reasonable limits prescribed
  by law as can be demonstrably justified in a free
  and democratic society.

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Section 1 interpretation

• Three stage test
• Does the law infringe a Charter right ?
• If so, is the law a reasonable limit (see Oakes
  test) on that right, that is it demonstrable
  justifiable in a free and democratic society?
• If not, what is the appropriate remedy to
  strike down all or part of the law? To suspend
  the law? To seek a broader interpretation and
  application of the law?

16
Section 1 interpretation

• Chief Justice Dickson in the 1986 Oakes case sets
  out four criteria for reasonable limitations
• Rational connection between law and its
  objectives
• Minimal impairment of the right
• A pressing and substantial problem
• Effects proportional to objectives

17
Section 24 Enforcement

• 1. Anyone whose rights and freedoms, as
  guaranteed by this Charter, have been infringed
  or denied, may apply to a court of competent
  jurisdiction to obtain such remedy as the court
  considers appropriate and just in the
  circumstances.

18
Sections 25-32 selected points

• S. 25 Charter does not abrogate or derogate
  Aboriginal rights
• S. 26 a guarantee of a right in the Charter does
  not necessarily deny other rights that may exist
• S. 28 all rights to be guaranteed equally to
  male and female persons
• S. 32 The Charter applies to the federal
  Parliament and government, as well as to the
  provincial and territorial assemblies and
  governments

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Section 33

• S. 33 Legislatures federal or provincial may
  expressly declare, in an Act, that the Act or
  provision thereof shall have operation
  notwithstanding a provision in section 2 or
  sections 7 to 15 of this Charter.
• Any override is limited to 5 years (but can be
  re-enacted)

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Impact of the Charter Areas of the law
substantially changed

• Criminal code, law enforcement and prosecution
• Abortions, family law
• Workplace equity, pay equity and retirement
• Immigration, refugee process
• Unemployment insurance
• Language and education
• Advertising
• aboriginal rights

21
Impact of the Charter On the Judiciary and other
institutions

• Huge increase in workload, esp. for Supreme Court
  of Canada
• Greater demand for social diversity, sensitivity
  of judges
• Huge constraint on policy-making process within
  bureaucracy
• Major focus of legal education
• Increased exposure, political role for judges

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Impact of the Charter On politics

• Empowering of litigant Charter groups
• Increased tensions judiciary vs legislatures
• Promotes pan-Canadian values (resistance in
  Quebec)
• Rights discourse displaces materialist politics
• Causing a conservative backlash