POL101 Lecture 6

Ch 18 in text

Four Categories of Rights and Freedoms

- political liberties (fundamental freedoms of speech, press, assembly)
- legal rights (rights of a person suspected or accused of committing a crime)
- equality rights (includes the right for people to not be discriminated against based on race, gender, religion, or age)
- economic rights (most controversial)

The two approaches for protecting rights and freedoms

USA and UK approaches

What is the difference between common law and conventions?

- common law is written
- conventions are unwritten but implied

What is the UK approach to protecting rights and freedoms?

- approach to protect the rights and freedoms is to make Parliament supreme; common law and conventions
- just because laws are not written down does not mean that they are nonexistent
- does not have a judicial review but has judicial discretion
- Rule of Law that states that all officials must act based on law

What is the USA approach to protecting rights and freedoms?

- BILL OF RIGHTS
- referred to as civil rights and liberties
- requires that all civil liberties are to be written down in a Bill of Rights
- the court has the power of judicial review

How many main changes were made to the Charter?

3; prior to 1960 (the Charter), 1960 (the implementation of the Charter), 1982 (implementation of Charter and Constitution)

What happened prior to the Charter?

- Canada inherited the Implied Bill of Rights from Britain
- courts engage in Judicial Review
- BNA/Constitution Act of 1867 states that the UK's model would be followed in CAD

What happened in 1960 when the Canada Bill of Rights was implemented?

- courts were able to invalidate legislation if there was a conflict with the Bill of Rights; though this was never directly articulated to courts, so confusion rose as to if courts were allowed to invalidate

What is the Charter of Rights and Freedoms?

- replaced the Bill of Rights in 1982
- part of the Constitution Act or 1982, that guarantees the rights and freedoms of all Canadian citizens
- Pierre Trudeau's attempt at fixing the Bill of Rights
- It is a Bill of Rights is a list of rights protected against the government's infringement
- 34 sections in the Charter

Section 1

Reasonable Limit Clause
- If a law violates the charter, the court can use reasonable limits to allow it to continue standing
-Oakes test are guideline created by the Supreme Court

Section 2

Fundamental Freedoms
- freedoms of expression, religion, belief, peaceful assembly, and association
- applies to anyone that is in Canada

Section 3-5

Democratic Rights
- rights to vote
- legislative assemblies should continue past 5 years
- legislative assemblies must sit at least once a year

Section 6

Mobility Rights
- every citizen of Canada has the right to enter, remain in, and leave provinces
- can also seek employment in other provinces

Section 7-14

Legal Rights
- essentially anything that has to do with general legal rights for anyone charged with an offence or being arrested

Section 15

Equality Rights
- applied to people of other race, nationality/ethnicity, colour, religion, or sex

Section 16-23

Official Languages of Canada and Minority-Language Education Rights
- English and French are the official languages of Canada; everyone has the right to use both and they are equally authoritative
- French and English can be used in any court established by Parliament
- Includes education in either French or English

Section 24-32

Interpretation and Group Based Rights
- courts enforcements of Charter; prevention of invalidation towards Indigenous rights; interpreted rights in multicultural context; charter applies to males and females equally

Section 34

Notwithstanding Clause
- allows the Parliament to ignore fundamental freedoms, legal rights, and equality rights

What is not included in the Charter because they are considered political matters, instead of legal matters?

- Economic Rights (rights to employment and reasonable housing)
- Social Rights (group rights that are not included in sections 24-32)
- Property Rights (differs from USA)
- Environmental Rights (rights to clean environment)

Criticisms of the Charter from Political L and R?

RIGHT
- claims that certain interest groups have benefited from the Charter compared to the majority
- argues that judges are taken from upper-class CAD society and use the power to oppress the majority

LEFT
- similar opinions as right; lack of representation of lower class society
- argues that Charter challenges are expensive and limited to people because of cost and that it does nothing to protect against class-based discrimination
- Lib Gov. brought in Court Challenges Program