Fundamental Rights and Freedoms

Fundamental Rights and Freedoms Charter of Rights and Freedoms Law 120

Fundamental Rights • Four freedoms guaranteed to everyone: • Freedom of conscience and religion • Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication • Freedom of peaceful assembly • Freedom of association • These freedoms not absolute – cannot infringe on the freedoms of others

Freedom of Conscience and Religion • Right to have the beliefs you choose and declare them openly without fear. • Express your beliefs through practice, worship, teaching and dissemination (spreading) • Cannot force someone to act contrary to beliefs or conscience (clergy do not have to perform legal same-sex marriages) • Court must determine the intent and extent of Charter in the case of conflicting rights (blood transfusions against religion)

R. v. David T. Little, 2008 NBPC 2 (CanLII) • Mr. Little, a devout Roman Catholic, is charged with failing to pay income tax under the Income Tax Act. Mr. Little argues that the Income Tax Act violates his right to freedom of conscience and religion under s. 2(a) of the Charter and Rights and Freedoms. • Mr. Little had paid his income taxes regularly for a number of years. Each time with a notification that his taxes should not be used to fund abortions. He saw no results from this action. Mr. Little then decided to file his return but not pay the taxes owed. The government then garnisheed his wages (removed the monies owed from his salary). Mr. Little stated that the government’s action “settled in my soul that this was not OK,” and he stopped filing returns altogether. He believed that unless the government could assure him that his tax money would not help to fund abortions, then he would be indirectly supporting an act that violated his religious beliefs. • Furthermore, Mr. Little’s counsel argued that as the preamble to the Charter begins with the words that Canada is founded upon principles that recognize the “supremacy of God,” it supports the proposition that a government may not impose a legal requirement on a citizen which takes priority over his religious beliefs.

R. v. David T. Little (continued) • The court rejected Mr. Little’s arguments and found Mr. Little guilty as charged. While the court recognized that the law of Canada is rooted in its religious heritage, it is also bound by the rule of law. • To succeed in a s. 2(a) Charter argument Mr. Little would have had to demonstrate that he was being discriminated against based on personal characteristics as enumerated in the Charter; that he had been subject to different treatment that made him less worthy of recognition and value. • There was no evidence that Mr. Little was being treated any differently than any other citizen who must pay taxes and there was no connection between paying taxes and Mr. Little’s opposition to abortion.

Question to Consider • Should people be able to withhold taxes based on the concern that their taxes may fund initiatives they oppose? Why or why not?

Freedom of Thought and Expression • Free to think and believe what you want and publicly express your opinions through various art forms. (freedom of the press) • Considered one of the key fundamental freedoms – court reluctant to restrict • R v. Keegstra – denial of holocaust (limitation of right of expression/press) • R v. Sharpe – child pornography case (freedom of expression?)

Freedom of Peaceful Assembly and Association • Assemble for peaceful purposes (rallies against government action) • Assembly must be peaceful (orderly demonstration vs. riot) • Association refers to the ability to join groups such as unions, political parties, sporting clubs, etc. • Can have limitations (young offenders on probation, RCMP/Fed lawyers cannot form unions)

Question to Consider • Should Internet blogs be subject to government monitoring? R v Fenton – death threat to Prime Minister in blog.

Democratic and Mobility Rights • The right to vote (sec 3 of Charter) • Subject to limitations (age, residence, and registration) • Right to elect a new government every 5 years • except during wartime or national emergency • Parliament must hold at least one session a year • allows elected members and public to question government actions and policy

Mobility Rights • Four subsections in the Charter involving rights of Canadian citizens to move in/out of country and between provinces • Majority of Charter cases on mobility rights involve extradition of prisoners • Send accused person to face trial in another country (except for capital cases in countries where death penalty is legal) • Why are there limitations to Canadian’s rights to move provinces and secure work? • When Charter was negotiated, richer provinces were worried about flood of unemployed looking for work and access to services paid for by permanent residences. Poor provinces afraid scarce jobs would be taken from those coming from richer provinces. (limit to social services)

Fundamental Rights and Freedoms