The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms

2.2 – The Development of Human Rights & Freedoms • Early laws, cruel by Cdn worldview meant to ensure society’s survival • 1215CE – King John sings Magna Charta, ltd monarch’s power • 1689 – English Bill of Rights (monarch obeyed laws of Parliament, allow free elections) • Philosophers believed that humans had natural rights – life, liberty, and security

Rights and Revolutions • 1775 – American Revolution, 13 colonies fought for independence from Gr Br • no taxation without representation • 1788 – American Constitution created, but no bill of rights, felt rights to the common people would result in ‘mob rule’ or anarchy • 1791 – 10 amendments to Const. Created the US Bill of Rights which are the basis of freedom and civil rights for Americans • 1700’s – end to feudalism, power of church & rulers > individual rights & freedom • 1789, French National Assembly passed the Declaration of the Rights of Man and of Citizen which became the basis of future modern democracies

Abolition of Slavery • Slaves are defined as ‘property’, change occurred slowly in Europe and NA – US Civil War Universal Declaration of Human Rights • This followed WW2, adopted by the UN in 1948 • Detailed list of HUMAN rights signed by many nations around the world

2.3 – Human Rights in Canada after WW2 • Cdns rights were not written, were based on Common law (unwritten, customs, tradition) • 1945, John Diefebaker, led a move to write them into law, but not until 1960 did he succeed in creating the Canadian Bill of Rights

Constitutional Protection of Civil Rights • Cdn B of R was criticized for being too weak; • A federal statute, controlled only Federal matters • Parliament could change it any time • Did little to protect equality rights • Pierre Trudeau changed law in Canada, creating the Constitution Act 1982 which included the Charter of R&F, they are entrenched (written within the Constitution) • Section 24 details guaranteed R&F & dictates evidence must be collected in accordance with the Charter

Constitutional Protection of Civil Rights • Section 1 = ‘Reasonable limits clause’ – sets limits on freedoms • Section 52 = laws must ‘fit’ the constitution (intent & letter of the law) • The Charter is to limit the power of govt. • Courts decide how protections of rights & freedoms • Supreme court (9 judges) is appointed by PM, some criticize the power they have over elected officials

Constitutional Protection of Civil Rights Matters Governed by the Charter • Court must first consider if it will hear a charter case • Must determine if matters are ULTRA VIRES or INTRA VIRUS – see pg46 The Notwithstanding Clause • Section 33 – allows provinces to ‘opt out’ of legislation – Bill 101 ‘French signs’ • Enacted for 5 years, then must be renewed • REVIEW YOUR UNDERSTANDING Pgs 44-49 Q#1-6

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Freedoms • Privileges that are so basic that they cannot be restricted by the laws of the government

Rights • Freedoms that citizens have; these are granted and guaranteed by legislation or government regulation • Human Rights • Natural rights that belong to all human beings simply as a condition of being human • These rights, however, will be of little or no use if this principle is not recognized by the government • Civil Rights • Rights that belong to all citizens of a particular country • These rights are normally protected by law and are often found in a constitution

Responsibilities • These extend beyond legal obligations to include the type of behaviour that shows respect for the rights of others • In Canada, these include political, legal, moral and social responsibilities • Political • Voting • Staying informed on important issues • Participating actively in political affairs

Legal • Performing jury duty • Obeying the law • Knowing your legal rights • Moral • Respecting the rights of others • Acting in a manner acceptable to society • Social • Participating in and supporting community activities • volunteering

Introduction • In 1982, the Charter of Rights and Freedoms was made a part of Canada’s new Constitution so that it can be changed only with great difficulty. • Any proposed change must receive approval of the Senate, the House of Commons, and two thirds of the provinces representing fifty percent of the Canadian population.

The Charter specifies who benefits from each of the rights and freedoms. For example, equality rights are guaranteed to every individual. Mobility rights are guaranteed only to citizens of Canada. • The Charter applies to both the federal and provincial governments. If the Courts decide that a government statute has violated the charter, they declare it invalid and it cannot be enforced.

The Charter consists of thirty-four numbered sections but, for our purposes, it will be divided into ten sections. • Section Thirty-three permits Parliament and the provincial governments to prevent many sections of the Charter from having any effect on the validity of particular statutes. The government can include an override provision in any statute which will cease to have effect after five years, but can be re-enacted by the government at that time.

1. Guarantee of Rights and Freedoms • 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)

2. Fundamental Freedoms • Everyone has… freedom of conscience and religion. (section 2(a)) • Everyone has… freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. (section 2(b)) • Everyone has… freedom of peaceful assembly. (section 2(c)) • Everyone has… freedom of association. (section 2(d))

3. Democratic Rights • Every citizen in Canada has the right to vote in an election of the House of Commons or of a Legislative Assembly and to be qualified for membership therein. (section 3)

4. Mobility Rights • Every citizen of Canada has the right to enter, remain in and leave Canada. (section 6,(1)) • Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right… to move and take up residence in any province and… to pursue the gaining of a livelihood in any province. (section 6,(2))

5. Legal Rights • Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. (section 7) • Everyone has the right to be secure against unreasonable search and seizure. (section 8) • Everyone has the right not to be arbitrarily detained or imprisoned. (section 9)

Everyone has the right on arrest or detention to be informed promptly of the reasons therefor. (section 10(a)) • Everyone has the right on arrest or detention… to retain counsel without delay and to be informed of that right. (section 10(b)) • Everyone has the right on arrest or detention… to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful (section 10(c))

Any person charged with an offence has the right to be informed without reasonable delay of the specific offence. (section 11(a)) • Any person charged with an offence has the right to be tried within a reasonable time. (section 11(b)) • Any person charged with an offence has the right not to be compelled to be a witness in proceedings against that person in respect of the offence. (section 11(c))

Any person charged with an offence has the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal. (section 11(d)) • Any person charged with an offence has the right not to be denied reasonable bail without just cause. (section 11(e)) • Any person charged with an offence has the right… to the benefit of a trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment. (section 11(f)) • Everyone has the right not to be subjected to any cruel or unusual treatment or punishment. (section 12)

6. Equality Rights • Every individual is equal before and under the law and has the right to equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (section 15(1)) • [The above] does not preclude any law, program or activity that has at its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (section 15(2))

7. Official Languages of Canada • English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions and the Parliament of Canada. (section 16(1)) • English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. (section 16(2))

Nothing in [these] sections… abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada. (section 21) • Nothing in [these] sections… abrogates or derogates from any legal or customary right or privilege acquired or enjoyed before or after coming into force of this Charter with respect to any language that is not English or French. (section 22)

8. Minority Language Educational Rights • Citizens of Canada whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside… have the right to have their children receive primary and secondary school instruction in that language in that province. (section 23(1)(a))

Citizens of Canada… who have received their primary and secondary school instruction in French or English and reside in a province where the language of the English or French linguistic minority population of the province have the right to have their children receive primary or secondary school education in that language in that province. (section 23(1)(b)) • Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada have the right to have all their children receive primary and secondary school instruction in the same language. (section 23(2))

9. Enforcement • 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. (section 24,1) • Where… 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 into disrepute. (section 24(2))

10. General Provisions • The guarantee in the Charter of certain rights and freedoms shall not be constructed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada… (section 25)

2.5 – RESOLVING INFRINGEMENTS OF THE CHARTER • if the court decides an infringement or restriction has occurred, it must decide if it is ‘reasonable’ and that it is ‘demonstrably justifiable in a free and democratic society’ • usually the govt tries to prove a limit is justifiable – eg. ‘Expression is limited to prevent promotion of hatred’ • if the court decides that the restriction is unreasonable, then the party may continue its actions • to by justified, both the objective and the means must be defensible in terms of the values of a free and democratic society

SOLUTIONS OR REMEDIES UNDER THE CHARTER • There are 2 ways of encoring the R & F guaranteed by the Charter • Courts can strike down a law if it breaches the charter or they can READ DOWN the law, specific to this case • Someone may apply to the courts directly citing which R or F has been violated

2.6 – HUMAN RIGHTS • PREJUDICE & STEREOTYPING • DISCRIMINATION • 2 types of discrimination; • Intentional discrimination =knowingly committing a discriminatory act • Unintentionaldiscrimination =unfair treatment but not aware

2.7 - HUMAN RIGHTS LEGISLATION • 1977 – federal Canadian Human Rights Act established that all Cdns. Will receive fair & equal treatment in all matters under federal control • ENFORCING HUMAN RIGHTS LAWS • ** see CASE, pg61 – CUPE ** Class discussion

Review Ch2 – Charter of R&F • REVIEW YOUR UNDERSTANDING pg 60-62, Q#1-5 • Ch Rev pg64, 64 – Review Key terms a-n, Check Your Knowledge #1-4, Apply #6a OR b

The Canadian Charter of Rights and Freedoms