Canadian Charter of Rights and Freedoms

Canadian Charter of Rights and Freedoms

Pierre elliot Trudeau and the Charter • http://www.youtube.com/watch?v=ngYEcae6ndE

SECTION 1 – GUARANTEE OF RIGHTS AND FREEDOMS / REASONABLE LIMITS CLAUSE • 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 • Your freedoms are not absolute – there are limits • Who decides what a reasonable limit is? • Judges have come up with a “formula” to help them decide when it is reasonable to limit someone’s rights or freedoms • This formula is known as the Oakes test because it was created during the precedent setting case, R. v. Oakes

SECTION 1 EXAMPLE – R. V. OAKES • In 1982 David Oakes was convicted of unlawful possession of a narcotic for the purpose of trafficking. • David appealed the conviction because he felt that the narcotics control act violate section 11(d) of the charter which states that everyone is innocent until proven guilty. • He said he had no intention of trafficking the drugs and used them only for personal use • The supreme court decided that in some cases it is necessary to “limit” certain rights and freedom • In order to assess those circumstances, they came up with 4 criteria to determine whether or not a right should be subject to limits • The Supreme court agreed that his rights were violated

The Oakes test • The reason for limiting the Charter right must be shown to be important enough to justify overriding a constitutionally protected right • There must be a rational connection between the limitation of rights and the objective of the legislation • The right must be limited as little as possible • The more severe the rights limitation, the more important the objective must be

Section 2 - Fundamental freedoms • Section 2 outlines the fundamental freedoms guaranteed to everyone: • Freedom of conscience and religion • Freedom of thought, belief, opinion, and expression, including freedoms of the press and other media of communication • Freedom of peaceful assembly • Freedom of association

To what extent should you be allowed to practice fundamental Freedoms? • Can you: • Participate in a public protest on the Conservative Party’s treatment of Omar Khadr? • Practice a religion that views homosexuality as wrong? • Pass out flyers encouraging people to assassinate the Prime Minister? • Miss a day of work due to a religious holiday? • Write an article in the newspaper discouraging immigration? • Distribute pornography? What about child pornography? • Teach your child that white people are a superior race?

Fundamental Freedoms Case Study • Mr. Keegstra was a high school teacher in Alberta. In the 90s he began teaching his history class extremely negative views towards Jewish people – that the Holocaust didn’t happen, and Jews were to blame for many problems in the world. • Which section of the Charter would apply in this case? • Do you think Keegstra is protected by the Charter? Why or why not? • If he is protected, do you think the court should limit his freedom? Would it be justified under section 1? • He was charged with promotion of hatred • He appealed his conviction to the Supreme Court and argued that he had the right to freedom of expression • The Supreme Court determined that Keegstra’s rights could be limited in the case under s. 1

Fundamental Freedoms Case Study • Chris Kempling was a teacher in Quesnel, BC. He began writing publications (outside of school) expressing his negative views towards gay people. • He was suspended by the BC Teachers’ College for 1 week. Kempling appealed the suspension because he felt his Charter rights were being denied • Which Fundamental freedom is in question? • Do you thin Kempling’s freedom should be protected in this case? Why or why not? • In the end, the appeal was not allowed. • Kempling eventually left the teaching profession

SECTION 3 – 5: DEMOCRATIC RIGHTS • Guarantees the right to vote in Federal and Provincial elections, and/or run for a position in the government • Elections have to take place every 5 years, except for an emergency situation such as war. • The right to vote was not Constitutional until 1982! Before then, many Canadians were denied the right to vote • Women – 1918 • Chinese and Japanese Canadians – 1947/1948 • Aboriginals – 1960

Democratic Rights Continued • “Every citizen” has the right to vote and run for office • Are there any (reasonable) restrictions on this right? • Age, residence and registration • In 1970, the voting age was changed from 21 to 18 • Do you think the voting age should be lowered?

DEMOCRATIC RIGHTS – CASE STUDY • In 2002 Richard Sauve was serving a life sentence for 1st degree murder. Richard wanted to vote in the federal election, however, under the Canada Election Act, prisoners were not allowed to vote • Do you think prisoners should be entitled to the same democratic rights as other Canadians? • Richard took the case to court claiming that the Act was a violation of his s. 3 Charter right • The Supreme Court agreed and declared the section of the act unconstitutional (struck down) and it was rewritten so that prisoners serving 2 or more years were not allowed to vote • Richard challenged the new law, and the Supreme Court agreed and the law was struck down (Rule of Law)

Section 6 - Mobility Rights • Concerns the rights of Canadian citizens to move in and out of the country and between provinces • The majority of charter cases involving sec. 6 have to do with extradition • Why are there limitations in this section? • When the Charter was written, Provincial governments were worried about this section • What if wealthier provinces became flooded with unemployed people looking for jobs and using social services? • What if poorer provinces lost scarce jobs to outsiders? • Section6 (3)(a) and (3)(b) protect local residents / provinces

SECTION 7 – 14: LEGAL RIGHTS • Outline the rights of a person who becomes involved with the criminal justice system • This section covers a person from the time they are detained, through the court system and in prison. • The courts have to determine if any rights have been infringed upon by police, Crown counsel, or any other members of the criminal system

S. 7: Life, Liberty and Security of the Person • This is one of the most difficult sections to interpret • Abortion cases – does an unborn child also have the right to life? • In Canada, a fetus is not considered a person • Assisted Suicide – does a terminally ill person not have the right to security of the person? Protection from corporal punishment or physical pain. • Sue Rodriguez was suffering from ALS and wanted to be able to end her life before her disease • She felt that the criminal code section 241 (b) violated her charter right to security of the person • The Supreme court disagreed and decided that assisted suicide should not be legalized

S. 8 Unreasonable Search and Seizure • The police must have a good reason for searching the person, home, or belongings of an accused • Example: the police can search the place where a person is arrested in order to find a weapon or article relating to the offence, but they cannot search randomly for anything that might turn up. • There are some exceptions in certain laws, such as the Controlled drugs and Substances Act • Police can search any place (except a residence) suspected of holding drugs, without a warrant

SAMPLE CASES – SEARCH AND SEIZURE • Abbotsford Police arrest man for drugs in his man-purse • http://www.canada.com/health/Cocaine+stash+discovered+Abbotsford+suspect+purse/5506782/story.html • Jarrod Bacon wants evidence excluded because of S. 8 of the Charter • http://www.vancouversun.com/news/Jarrod+Bacon+lawyer+tries+have+drug+trafficker+evidence+excluded/5506712/story.html

S. 9 - Arbitrary Detention or Imprisonment • People cannot be held for questioning, arrested, or kept in jail without good reason • The police can’t stop you on the street and search your bag unless they have a justifiable reason • What about road blocks? Are they justifiable? • Case: R. v. Ladouceur • Ladoceur was stopped during a random police traffic check and his license was suspended. • He appealed on the grounds that the traffic check violated S. 9 • The Supreme court dismissed his appeal because although the traffic checks do violate S. 9, they can be jsutified under S. 1 as “reasonable limitations”

S. 10 & 11 – RIGHTS WHEN ARRESTED AND CHARGED • S. 10 - Once arrested, everyone has certain rights • To be informed of • the reason for arrest • The right to counsel (the speak with a lawyer) • Habeas corpus – to be brought before a judge to determine if arrest is lawful • S. 11 – When Charged, everyone has rights • Tried within reasonable time • Accused cannot be forced to testify • Innocent until proven guilty • Reasonable bail • Law must be in force at the time of the crime • Double Jeopardy

S. 12 – CRUEL AND UNUSUAL PUNISHMENT • The government may not treat or punish individuals in an unnecessarily hard fashion • Cases often come to courts to determine the definition of what is cruel and unusual treatment. • Inmate in federal penitentiaries have tried to argue that being denied cigarettes falls under this category • 1991 a judge found that the condition of a youth detention center was “cruel and unusual punishment” because the cells were hot, dirty and overcrowded.

S. 13 – RIGHTS OF WITNESSES IN COURT • Witnesses who give evidence in court cannot have their testimony used against them • What about if a witness lies on the stand? Could that be used against them in a criminal charge? • Accused/Witnesses also have the right to an interpreter if they do not speak the language of the court or are hearing impaired

Equality Rights • 15(1) – Guarentees everyone is treated equally by the government / law • 15(2) – sets limitations to these equality rights • Affirmative Action • Governments can set up programs to ameliorate (improve) the condition of certain disadvantaged groups or individuals • Handicapped parking • Recruiting for jobs (Richmond fire gave hiring preference to Visible minorities and females – why do you think this is?) • http://www.cbc.ca/news/canada/british-columbia/story/2007/03/30/bc-firefighters.html

S. 16 – 22: LANGUAGE RIGHTS • Affirms that Canada is bilingual and French and English have equal status • English and French can be used in Parliament • Statues, records, and journals of Parliaments must be published in both languages • Member of the public are entitled to communicate with the government in either language • The federal gov. must provide services in both languages at central offices and elsewhere if there is sufficient demand • Either language can be used in all courts across Canada

S. 23 - Language Education Rights • In provinces where most people speak English, citizens can have their children educated in French if: • Their first language is French • They receive their primary education in Canada in French, or • They have a child who is already receiving or did receive education in French • In Quebec, citizens have the right to have their children educated in English • These are only available if there is a sufficient number of children to justify the service

S. 24 - Enforcement • 24(1) Anyone who feels that their rights or freedoms in the Charter have been denied, may apply to court for a remedy • 24(2) If evidence was taken in a way that infringed on Charter rights, it may be excluded in court

S. 25 – 31: GENERAL RIGHTS • S. 25 Protects the culture, customs, traditions, languages, and other rights or freedoms pertaining to Aboriginal peoples • S. 27 acknowledges that all charter rights must work to preserve and enhance the multicultural nature of Canada • S. 28 affirms that all charter rights apply equally to both men and women

S. 32 – 33: APPLICATION OF THE CHARTER • The Charter applies to all governments within Canada (Provincial / Territorial / federal) • S. 33 – The Nothwithstanding Clause • In 1982 Provinces were concerned that the Charter gave too much power to the judiciary • This section allows the federal/provincal governments to override a freedom or right IF NECESSARY • To ensure it is not abused, the law can only stand for 5 years and then it must be reviewed again • In 1988 Quebec invoked the “notwithstanding clause” in order to allow French only law to stand • 1928 – 1972 the Alberta government permitted sterilization of mentally disabled people. One victim of forced sterilization sued the government in 1996. The Premier invoked s. 33 to create a law that would limit the payout so that the government wouldn’t have to compensate all the victims – the bill was withdrawn

Canadian Charter of Rights and Freedoms