CLN 4U October 12 th / 13th

1. CLN 4U October 12th / 13th 1. Attendance 2. Current Events 3. The Charter and The Courts (R v. Oakes) (R v. Keegstra) 4. Role of the Courts (Case M v. H) 5. Controversial Decisions: Morgentaler

2. The Evolution of The Charter & The Role of the Courts Resolving Charter Disputes and Changing the Law

3. Current Events Face veils banned for citizenship oaths/Dec 2011 Federal Court of Appeal Ruling allows wearing Niqab Niqab-citizenship ceremony ruling will be appealed, PM says 'This is a society that is transparent, open and where people are equal,' Stephen Harper says What do Canadians Think? Taking The Oath

4. The Charter’s Evolution Time Line Led to CCoRF/Patriation/Entrenchment The Victoria Charter 1968 English Common Law The Canadian Bill of Rights August 10, 1960 (Prime Minister Diefenbaker) Constitution Act 1982 (April 17th) Queen Elizabeth II Signs legislation entrenching the Canadian Charter of Rights & Freedoms Put existing rights into writing Limitations (see pg 130-131)

5. The Charter and The Courts • After the Second World War, there was a strong push globally for civil liberties laws in Canada and around the Globe. • Diefenbaker introduced the Canadian Bill of Rights in this political climate. • This was a big step for civil liberties in Canada, but ultimately not a complete solution. • Three problems with the Bill of Rights: 1. Bill was an ordinary statute like any other act of parliament – could easily be changed 2. Not entrenched, therefore did not take precedence over other acts of parliament 3. Applied only to areas of federal authority – not provincial

6. The Charter and The Courts • Charter Of Rights and Freedoms, 1982 solved the weakness of the Bill of Rights • Rights protection would now apply to federal, provincial and territorial governments • Rights protection enshrined in the Constitution • very difficult to changed – required use constitutional amending formula: 7/50 Formula – 7 provinces representing 50% of the population required

7. The Charter and The Courts • Charter of Rights and Freedoms entrench 4 fundamental freedoms • Religion • Expression • Peaceful Assembly • Association http://laws.justice.gc.ca/en/charter/

8. The Charter and The Courts • Charter of Rights and Freedoms guarantee the following rights • Democratic (ss. 3-5) • Mobility (s. 6) • Legal (ss. 7-14) • Equality (s. 15) • Language (ss. 16-22) • Aboriginal and treaty rights (s. 23)

9. The Charter of Rights and Freedoms Section 1 Guarantee “guarantees the Rights and Freedoms subject to ReasonableLimits prescribed by law as can be demonstrably justified in a free and democratic society Two Tests The limit must be important Limit must be reasonable & justified for the benefit of society as a whole Independent Work: R v. Oakes pg 134-135 Q #1-4

10. R v. Oakes [1986] Q & A 1. They agreed that section 8 of the Narcotic Control Act created a reverse onus of proof, and violated his charter rights by infringing his presumption of innocencerights under section 11(d). 2. Section 8 of the Narcotics Control act was deemed unconstitutional, and placed the burdenof proof for drug trafficking back on the government.

11. R v. Oakes [1986] Q & A 3. Open to interpretation; one could argue that Justice Dickson felt that S.8 of the narcotics control act assumed a very low threshold for guilt, and placed undo force on citizens living in a free and democratic society. Such measures undoubtedly run contrary to the spirit of charter of rights & freedoms.

12. R v. Oakes [1986] Q & A 4a) A law can reasonably limit a Charter Right if it meets all of the following criteria: i) Enforces a government objective ii) Limitation of individual rights is minimal iii) Law is clear and sets precise standards 4b) Established test case whereby others laws limiting S.1 of the Charter could be analysed (known as the Oakes Test).

13. Fundamental Freedoms • Fundamental freedoms (civil liberties) are guaranteed under S.2 of the Charter. • Freedom of Expression gives us the ability to freely criticize the government without fear of reprisal. • Though we have freedoms, they come with responsibilities. Defamationlaws prevent us from saying whatever we want as an example. Seatwork/Homework: R v. Keegstra pg 137-138 Q #1-6 Typed Due on my desk Wed. Oct. 14th Start of Class /10 Marks

14. Case Example of Fundamental Freedoms R v. Keegstra (1990) • High School teacher Jim Keegstra convicted of willfully promoting hatred in the classroom by forcing students to repeat anti-semitic remarks in the classroom. • Keegstra challenge the conviction, arguing hi s Charter rights were infringed by s. 319(2) of the Criminal Code. • The Alberta Court agreed, calling s.319(2 ) of the code to broad in scope. • Crown appealed the decision, and Supreme Court overturned the Alberta Court ruling, arguing that there are limits to our Freedom of Expression.

15. Fundamental Freedoms • While these freedoms are considered fundamental, they are not absolute. • As we have seen with Keegstra, there are reasonable limits that are justifiable in a free and democratic society. • Example: Lord’s Day Act could not survive a Charter challenge, and was struck down. (No Sunday Shopping) Text pg. 136

16. Whatcott Decision in Detail Read the article Anti-gay pamphlets broke law, Supreme Court of Canada says In partners, answer the following questions: 1. What are the facts of this case? Did the Charter supersede the Human Rights Law in Saskatchewan? 2. What was the Supreme Courts view on free speech and expression in this case 3. Is this a case of Freedom or Religion versus Freedom of Expression? Why or why not?

17. The SCC and the Charter • Prior to 1982, the Supreme Court existed predominantly to resolve issues of jurisdiction between federal and provincial governments. • Post 1982, the SCC expanded its mandate to include more judicial review, to determine whether laws adhere to the Charter.

19. Judicial Appointment • Judges appointed to the 750 courts across Canada. • Lower court judges are appointed by provincial governments; Superior Court are appointed by the federal government. • All judges are selected from practising lawyers. • SCC Judges appointed by the PM, making the process somewhat political. Richard Wagner, appointed Oct 2012 by the Harper Government

20. Resolving Charter Disputes • In addition to using s.1 of the Charter, a law that infringes Charter rights can dealt with by the courts in the following ways: Strike down law: Offending legislation no longer in effect. Read down: Law is found to be generally consistent with the Charter, but not with the case at hand. Evidence Admissability: Courts can also rule on whether evidence against plaintiffs was obtained in a manner consistent with the Charter.

21. Judicial Activism • Some Canadians feel that the Supreme Court has to much authority to strike down laws created by elected representatives. • Judicial Activism: The perception that judges, rather than Parliament, are making laws and imposing their personal values in their judgements. What is the artists comment on Judicial Activism in this comic?

22. M v. H: Changing Laws • Since 1982, the has played an increasing role in the interpretation of Canadians' rights, and ruled on many difficult cases. • M. v. H. [1999] is one such case with respect to same-sex equality rights under s. 15 of the Charter. Facts of Case: - Two Toronto women, M. And H., began living in a spousal relationship in 1982. - Though equal partners, H.'s direct financial contributions were greater than that of M.'s - In 1992, the relationship ended. The breakup left M. financially disadvantaged. - Under s.19 of the Ontario Family Law Act, a “spouse” is entitled to spousal support payments. This did not apply to same-sex couples by law.

23. M v. H: Changing Laws Court Challenge - M. challenged s.15 of the Family Law Act as an infringement of Charter her rights. - The definition of “spouse” in this case was discriminatory. Decision - The Ontario Superior Court agreed with M. In 1996 - S.1 of the charter was not applicable. - Defintion of “man and a woman” was changed to “two persons”. - The decision survived judicial review at both the Ontario Court of appeal and the Supreme Court.