Charter of Rights

Canadian

Oakes test

Regina v. Oakes 1986 ( 1st legal challenge of the Charter )  OAKES TEST 

Balancing of Legal Rights  - Protect society from drug trafficking and the right of a person to be innocent until proven guilty  page 39 . “ Reverse Onus “ - Burden of proof should be on the Crown

Section 1 - Reasonable Limits  Clause

People living in Canada are privileged to have constitutionally protected rights and freedoms.  Rights are the legal, moral, or social entitlements that are due to all people simply because they are human beings.  On the other hand, freedom refers to people being able  to live their lives without being hampered or frustrated.   These rights and freedoms are recognized and outlined in the part of the constitution called the Canadian Charter of Rights and Freedoms.

The Charter has jurisdiction over areas where people and government have a relationship.  It does not apply where people have a relationship with other people - this is ‘human rights’ territory, and is discussed in section 4.2.  People in Canada may challenge the government on a Charter issue if they perceive that their rights have been infringed upon.  These challenges are heard only by the Supreme Court of Canada.

• Section 1 of the Charter is the Reasonable Limits Clause.

• Rights and freedoms may be limited if the limitation can be justified in a free and democratic society.

• Courts usually decide what "reasonable" means on a case by case basis.

   E.g. a person's freedom of expression may be limited if they are promoting hate speech.

Section 2 : Fundamental Freedoms

Section 2 of the Charter lists four fundamental freedoms.  The first one is the freedom of conscience and religion.  This provides the right to practice chosen beliefs, publicly declare chosen beliefs without fear, and express beliefs through practice, teaching, worship, and dissemination.  The second fundamental freedom is the freedom of thought, belief, opinion, and expression (including freedom of the press).  This means that people are free to think and believe what they want; as well as to publicly express their opinions through writing, speech, painting, photography, and other means.  Third, the freedom of peaceful assembly allows people to publicly demonstrate or march in support of a cause that’s important to them.  Finally, the freedom of association refers to the right to belong to, and be an active participant in any organization.

• Section 2 of the Charter explains the basic freedoms provided to all Canadians.  

• These are fundamental freedoms:

  • Freedom of Conscience and Religion

  • Freedom of Thought, Belief, Opinion, and Expression

  • Freedom of Peaceful Assembly and Association

Section 3-5 : Democratic Rights

Section 3 of the Charter presents the democratic rights afforded to people in Canada.  These rights include the right to vote in provincial and federal elections.  It is important to note that there are some restrictions on democratic rights; and specifically, restrictions having to do with voter age, registration, and residency.  It is not mandatory that people vote, but people in Canada have the right to do so, if they wish.

Democratic Rights

• Sections 3,4, and 5 of the Charter

• Definition: right of citizens to vote

• Also guarantees that an election must be held every five years

Section 6 : Mobility Rights

Mobility rights are presented in section 6 of the Charter.  These rights refer to the freedom to enter and leave Canada at will, move anywhere within Canada, and have access to government services in any part of Canada.  One interesting exception to these rights is when a person in Canada is accused of having committed a crime in another country.  In this case, the accused person may be extradited to the accusing country to face the charges.  Extradition is a common practice in Canada; but is not undertaken if the accused person faces a capital offence in another country.

• Section 6 of the Charter

Definition: right to enter and leave Canada; right to move between provinces and territories

Section 7 Legal Right

Section 7 presents the right to life, liberty, and the security of a person.  These rights are wide in scope, and generally refer to everyone’s right to stay alive, have freedom to live their lives, and to be physically and psychologically safe from harm.

Section 8 Legal Right

Section 8 states that everyone has the right to be free from an unreasonable search and seizure.  This means that people have a right to privacy, and that police must follow specific guidelines for search and seizure.

Section 9 Legal Right

Section 9 people have the right not to be arbitrarily detained or imprisoned, as outlined. This means simply that people cannot be jailed without just cause, and adherence to due process.

Section 10 Legal Right

Section 10 states that people have two specific rights when arrested or detained:  the right to be promptly informed of the reason for the detention, and the right to be informed that they have the right to obtain legal counsel.

Section 11 Legal Rights

Section 11 outlines a number of other legal rights that people have.  Some of these legal rights include:  right to be promptly informed of a charge against them, right to go to trial within a reasonable time, right not to be forced to testify at their own trial, right to be thought innocent until proven guilty, and if found not guilty, right not to be tried for same offence again.

Section 24 of the Charter

• This section allows anyone who believes their rights have been infringed to apply to a court for a remedy.

• Infringed – violated or broken

Remedy – a method for a person to enforce his/her rights in court