Lesson 4: The Legislature and the Judiciary, Lesson Template

1. Lesson 4: The Legislature and the Judiciary, Lesson Template Topics to Cover:*1. How rights in the Charter may be limited or overruled.*2. The role of the courts and tribunals and, in particular, the Supreme Court of Canada, in interpreting Charter rights.* 3. How Charter rights are enforced.

2. Limitations of the Charter • Section 1: • Section 1 of the Canadian Charter of Rights and Freedoms is the most important section of the Charter, as this section sets the purpose to all other sections of the charter. Section 1 states: • “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.” • Section 1 is known as the “Reasonable Limits Clause”. This clause, in other words, means that the rights in the Charter can be limited by other laws.

3. Section 24 • Section 24 of the Charter, entitled “Enforcement”, goes further when talking about Charter rights that have been violated. Section 24 state: • “24(1) Anyone whose rights or 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.(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice in to disrepute.” • In other words, if the court decides there was reasonable, just reasons to take away a listed right and freedom in the charter away from a citizen, the court has the right to strike down the law, and take away the specific right without consequence under certain circumstances.

4. Section 33 • Section 33 of the Charter is known as the “Notwithstanding Clause”. This is another key section of the Charter which clear defines how governments may legally violate Charter rights. Section 33 states: • “33(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. • However, a number of rights entrenched in the Charter are not subject to recourse to section 33 by Parliament or a legislature. These are democratic rights (sections 3-5 of the Charter), mobility rights (section 6), language rights (sections 16-22), minority language education rights (section 23), and the guaranteed equality of men and women (section 28). Also excluded from the section 33 override are section 24 (enforcement of the Charter), section 27 (multicultural heritage), and section 29 (denominational schools)

5. Charter Tests-Chart

6. Summary of Charter “Tests”: These Charter“tests” are applied in cases where Charter rights had to be either defended or limited. These “tests” create guidelines to help judges decide whether legislation reasonably or unreasonably infringes upon Charter rights. The general idea of the tests is to make sure by limiting a person’s rights, the most just thing is still being done. It insures situations where a person’s rights in the charter are limited are appropriate, and separate from forms of discrimination. Striking down someone’s rights must be proven logical to the best solution.

7. R.V Oakes Case • The Oakes Test is a legal test created by the Supreme Court of Canada in the case R. v. Oakes (1986). • R. v. Oakes provided the Court with the opportunity to interpret the wording of section 1 of the Charter and to explain how section 1 would apply to a case. The result was the Oakes Test - a test that is used every time a Charter violation is found. • Police charged Mr. Oakes, an alleged a drug dealer, with unlawful possession of a narcotic for the purpose of trafficking, contrary to s.4(2) of the Narcotic Control Act. • Oakes’ lawyer argued that section 8 infringed the right to be presumed innocent, by making the accused prove his innocence. The prosecution argued that section 8 required a “reasonable limit prescribed by law” that could “be demonstrably justified in a free and democratic society” under section 1 of the Charter.

8. The Oakes Test: Supreme Courts of Canada Charter of Rights Interpretation • The Oakes Test: • 1. First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom. • 2. Second, the party invoking s. 1 must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test involving three important components. • A)To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. • B)In addition, the means should impair the right in question as little as possible. • 3. Lastly, there must be a proportionality between the effects of the limiting measure and the objective -- the more severe the deleterious effects of a measure, the more important the objective must be.

9. Ford v. Quebec Case • Ford v. Quebec (Attorney General), 1988, is a landmark Supreme Court of Canada decisionin which the Court struck down part of the Charter of the French Language, commonly known as Bill 101. This law had restricted the use of commercial signs written in languages other than French. The court ruled that Bill 101 violated the freedom of expression as guaranteed in the Canadian Charter of Rights and Freedom, and section 3 of the Quebec Charter of Human Rights and Freedoms. • In response to the Supreme Court’s ruling, the Quebec Premier introduced Bill C-178. When the government of Quebec invoked the notwithstanding clause of the Charter of Rights and Freedoms, it succeeded to override section 2(a) of the Charter, and to implement a law concerning the use of French only in signs, which it knew would otherwise violate Charter rights. • This case is an important one in Canadian legal history due to the use of the notwithstanding clause of the Charter of Rights and Freedoms.

10. Other General Provisions on how Charter Rights are Enforced: • Section 25 states that Charter rights and freedoms shall not interfere with any Aboriginal treaty rightsor other rights and freedoms that pertain to the Aboriginal peoples of Canada. • Section 26 asserts that Charter rights and freedoms shall not interfere with any other rights and freedoms that may exist in Canada. • Section 27 states that the Charter shall be interpreted in a manner that is consistent with the preservation and enhancement of the multicultural heritage of Canadians. • Section 28 provides that Charter rights and freedoms are to be guaranteed equally to male and female persons. • Section 29 asserts that Charter rights and freedoms shall not interfere with any rights and privileges guaranteed under other parts of the Constitution regarding religious or denominational schools. • Section 30 states that the Charter applies to the territories exactly the same way that it applies to the provinces. • Section 31 states that nothing in the Charter extends the legislative powers of any body or authority, such as the sharing of responsibilities or the distribution of powers between the provinces and the federal government.

11. Watch the following youtube clip to summarize your knowledge on the Canadian Charter of Rights and Freedom. http://www.youtube.com/watch?v=xvuySazzaAQ

12. Bibliography • Exterior Links: • http://www.pch.gc.ca/pgm/pdp-hrp/canada/guide/ov-apr-eng.cfm • http://www.mapleleafweb.com/features/canadian-charter-rights-and-freedoms-introduction-charter-rights • http://www.sfu.ca/~aheard/oakes.html • All other contest derived from course content CLN4U