Even though the charter is the highest law, can it still be challenged and changed?

1. Even though the charter is the highest law, can it still be challenged and changed?

2. Jurisdiction (Areas of Authority) • Canadian Charter of Rights and Freedoms (“Charter”) has 34 sections that define the relationship between people, organizations, and companies in Canada and the government • The Charter applies to, or has authority over relationships between the government which includes: • The legislative, executive, and administrative branches of the federal and provincial government • Crown corporations (ex. Post Office) • Federally incorporated companies or organizations regulated by the federal government (ex. Banks, Insurance Companies, CRTC) • and… • People, Organizations, Companies • The Charter does not have jurisdiction to protect your rights if discrimination or other injustices do not involve government – have to use Federal and/or Provincial Human Rights Codes in these situations (i.e. Ontario Human Rights Commission)

3. Enforcement – The Supreme Court of Canada (SCC) “Guardian of the Constitution” • Nine justices (judges) in the SCC are responsible for interpreting and enforcing the terms of Charter • S.24(1) gives people who believe their Charter Rights have been violated by the government or its agencies the right to challenge the government in court • Before the Charter, the role of the courts was only to interpret existing law, rather than to uphold the rights of citizens

4. Guarantee of Rights and Freedoms – Section 1 s.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. • Paraphrase sec 1 in your own words • What do you think is meant by the term “reasonable limits”? • What do you think is meant by the term “demonstrably justified”?

5. To decide whether a case will be heard the SCC asks: • Was the right infringed or violated by the government or its agencies? • Is the right in question covered under the Charter? • Is the violation or infringement within a reasonable limit? • (i.e. justified under section 1 Oakes test)

6. Limits and Guarantees • Section 1 Guarantee – Rights and Freedoms Under the Charter are not Absolute and are Subject to “Reasonable Limits” • If the federal or provincial government wishes to pass a law that limits a Charter right, it must show that this limitation can be justified in a free and democratic society • Section 1 of the Charter is often referred to as the “reasonable limits clause” because it is the section that can be used to justify a violation on a person’s Charter rights. • Charter rights are not absolute and can be violated if the courts determine that the violation is reasonably justified. • Section 1 of the Charter also protects rights by ensuring that the government cannot limit rights without justification. • Thus, s. 1 both limits and guarantees Charter rights.

7. What is the Oakes Test? • In order for the Charter violation to be justified, the government has to prove to a court that its actions satisfy the steps in a s. 1 analysis. • The Oakes test is a legal test created by the Supreme Court of Canada (SCC) in the case, R. v. Oakes (1986). R. v. Oakes provided the court with the opportunity to interpret the wording of s. 1 of the Charter and to explain how s. 1 would apply to a case. The result was the Oakes test – a test that is used every time a Charter violation is found. • Oakes Test – 1986 SCC Case gives criteria for establishing whether a reasonable limit can justified in free and democratic society

8. The Oakes Test – Case: • The Case of R. v. Oakes (1986) - David Edwin Oakes was charged with possession of drugs, and possession with the intent to traffic. At the time of the trial, a person charged with drug possession was automatically charged with possession with the intent to traffic. • If a person was found guilty of possession of drugs, s. 8 of the Narcotic Control Act (“NCA”) placed the onus on the person charged to prove that there was no intent to traffic. If the accused could not prove lack of intent, the accused would automatically be found guilty of the charge. Mr. Oakes challenged this section of the NCA as an infringement of his s. 11(d) Charter right, the right to be presumed innocent. • The court found that s. 8 of the NCA violated s. 11(d) of the Charter. The court then considered whether the government could justify this violation under s. 1 of the Charter. Section 1 requires the government to show that the law in question is a reasonable limit on Charter rights, which can be demonstrably justified in a free and democratic society. The court found that the government failed to satisfy s. 1 of the Charter, and as a result, held that s. 8 of the NCA was of no force or effect.

9. What are the criteria of the Oakes test? • Prescribed by Law: The limitation/violation of any Charter right must be prescribed by law. This means that the limitation must be legal, and be part of a law, statute or regulation that is within the jurisdiction of the level of government that passed it. The law must be clear (not vague) and accessible to citizens so that they may know what kinds of activities are allowed and not allowed. • Pressing and Substantial: The government must prove that the objective of the law is pressing and substantial. In other words, the purpose of the law must be important to society. • For example, in the case of R. v. Big Drug Mart, the SCC found that the Lord’s Day Act, which required all stores to close for business on Sunday, regardless of the owner’s religion, infringed s. 2(a) of the Charter, freedom of religion. The court found that the purpose of this law was to force people to observe a Sunday sabbath, a law that was not of significant importance, or pressing and substantial enough, to justify the infringement of s. 2(a).

10. What are the criteria of the Oakes test? • Proportionality:This step in the Oakes test contains three sub-steps. The concept of proportionality refers to the fact that the government has to find reasonable ways to achieve or implement its legislation. • Rational Connection The limitation of the right must be rationally connected to the objective of the law in question. Any limitation to a Charter right cannot be arbitrary, or unconnected to the purpose of the law. • For example, in R. v. Oakes, the SCC found that there was no rational connection between the requirement that an accused disprove intent to traffic with the purpose of the law, to prevent drug trafficking. The court found that the government did not satisfy the rational connection element of the Oakes test. • Minimal Impairment In order for a government action that infringes Charter rights to be justifiable, the Charter right must be impaired as little as possible. If the government could achieve its legislative objective another way, one that involves less impairment on a right, the government must do so. • For example, a law that does not allow unions to form because its purpose is to protect businesses affected by a strike would likely be found to be an unjustifiable infringement of s. 2(d), freedom of association. If there are less drastic means of achieving the purpose of protecting businesses, then those means should be taken by government when they draft the law.

11. Proportionate Effect: This part of the Oakes test is concerned with the overall benefits and effects of the law in question. • Proportionate effect seeks to balance the negative effects of any limitation of a right with the positive effects that law may have on society as a whole - whether the benefits of that law are greater than any negative effects produced by a limitation on a right.

12. Let’s use an example to help us understand this principle: • Police Ride Programs • http://www.youtube.com/watch?v=0KhgJN-Y1iU • http://www.youtube.com/watch?v=lqXpSU_rZ4Q • What are the requirements of a citizen at a police ride check? • What law is this enforcing? • What is the purpose of this law? • Is this a reasonable law that keeps the safety of all citizens in mind? • Is this a violation of a charter right? • What are other ways the purpose of this law can be enforced?

13. Let’s Apply the Oakes test to police ride programs… • Prescribed by Law: The limitation/violation of any Charter right must be prescribed by law. • Pressing and Substantial: The government must prove that the objective of the law is pressing and substantial. In other words, the purpose of the law must be important to society. • Proportionality:The government has to find reasonable ways to achieve or implement its legislation (3 steps): • Rational Connection The limitation of the right must be rationally connected to the objective of the law in question – not arbitrary • Minimal Impairment In order for a government action that infringes Charter rights to be justifiable, the Charter right must be impaired as little as possible • Proportionate Effect: Whether the benefits of that law are greater than any negative effects produced by a limitation on a right

14. SO…Can you justify the police ride program according to the criteria? • Share your thoughts…