The Canadian Charter of Rights and Freedoms

Why is the Canadian Charter of Rights and Freedoms so important?

1. it governs the relationship between individuals and the government
2. makes sure governments can't pass laws that infringe unfairly upon our rights and freedoms
23 protects our civil rights whereas human rights legislation protects our human rights

Who/What does the charter apply to?

1. Entities controlled by the government and/or exercise governmental functions (ex. police)
2. Entities implementing government programs and/or exercising statutory powers (ex, law societies, provincial human rights commissions)

legislation

the act of making or enacting laws

Who/what does the legislation apply to?

Applies to all 1) laws and 2) regulations including federal and provincial statutes, municipal bylaws and other delegated legislation (ex, rules of professional conduct)

Where are the limitations of the charter?

Section 1

Section 1 (Limitaitons) of the charter says...

1. Your rights are those listed in the charter
2. Your rights are not absolute

What is the Oakes Test?

If a court find that a piece of legislation or government conduct infringes a charter protected right, it must carry out an analysis to determine whether that infringement is justifiable. This determination is made using the " Oakes test"

What does section 2 of the charter talk about?

Fundemental Freedoms

Section 2 (Fundamental Freedoms) of the charter says...

1. Fundamental rights and freedoms are a basic and essential to the quality of life
2. They can only be infringed (take away or violated) upon by government in the most dire of circumstances

What does section 3 of the charter talk about?

Democratic Rights

Section 3 (Democratic Rights) of the charter does what?

1. Sets out the rights and provisions concerning the political process and democracy for Canadian citizens

What does section 6 of the charter talk concern?

1. Concern the Canadian Citizens to be in and move within Canada
2. Applies to Canadian citizens, however the provisions for travelling and working in Canada also apply to permanent residents

What does section 6 of the charter talk about?

Mobility Rights

Section 7-14 (Legal Rights) of the charter talks about what?

1. The way in which a person in Canada are protected in encounters with the justice system

What is section 7-14 of the charter?

Legal Rights

Habeas Corpus

An order to produce an arrested person before a judge.

Double Jeopardy

the prosecution of a person twice for the same offense.

What does the Constitution do about double jeopardy?

It prohibits anyone from being prosecuted twice for substantially the same crime

Self-Crimination

testifying against oneself information that will suggest your involvement in a crime

Enumerated Grounds

Race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

Analogous Grounds

Sexual orientation, marital status, citizenship and Aboriginality- residence

Affirmative Action

A set of policies/practices in a government or organization trying to include particular groups based on their gender, race, sexuality etc, which are underrepresented

What does Section 15 of the charter talk about?

Equality Rights

Section 15 (Equality Rights) of the charter talks about what?

How Canadians have the right not to be discriminated against by the government due to to being members of certain communities and social identity groups.

Many of these groups were originally included in this section (enumerated grounds) while others have since been added by the courts (analogous)

What does Section 16-22 of the charter talk about?

Official Languages

Section 16-22 (Official Languages) of the charter grant?

These sections grant the use of both English and French in federal government institutions

What does Section 23 (Minority Languages) of the charter provide?

It provides a right for speakers of either official language to have their children receive primary and secondary instruction in that language

If there is a lot in a community, they have the right to have that education paid for by public funds.

What is Section 23 of the charter?

Minority Languages

What is section 24&52 in the charter

S. 24&52 Enforcement of Guaranteed Rights and Freedoms

What does Section 24 of the charter talk about?

Section 24 allows parties to bring forward a claim to the courts when they feel their rights are being violated

What does Section 52 of the charter talk about?

Section 52 (of the Constitution Act of 1982) states that the Constitution of Canada is the supreme law of the land

S.33 Notwithstanding Clause does what?

Allows parliament or provincial languages to override some charter protected rights found in section 2 and 7-15. It cannot be used to override any other sections

Amending the Charter

Changes that require the federal government and seven of the ten provincial legislatures to approve of the change, and these provinces must account for 50% of the total Canadian population. 7/50 rule

Probable Cause

reasonable cause for issuing a search warrant or making an arrest

ex. the heat lamps where marijuana is grown and people calling in to say something is suspicious

This section constitutes our reasonable expectation of privacy

Section 8 guarantees that "everyone has the right to be secure against unreasonable search or seizure."

Section 1 does what?

Limits and guarantees your charter rights

Reasonable Limits Clause (also section 1)

Allows certain limits to be set on rights and freedoms

Charter Rights are...

Not Absolute

Section 1 cannot...

limit rights without justification. Thus it both limits and guarantees Charter rights

Where does Section 1 apply?

It applies in cases where a Charter infringement is being argued

What is used every time a charter infringement has been found?

The Oakes Test

Case Study of Rv. Oakes

- David Oakes was charged with possession of drugs, and possession of intent to traffic. At the time of the trial, a person charged with drug possession was automatically charged with possession with the intent to traffic

- If a person was found guilty of possession of drugs, s.8 of the National Crime Agency (NCA) placed the duty/responsibility on the person to prove that there was no intent to traffic and if they could not prove lack of intent, they would automatically be found guilty of the charge.

- Oakes challenged this section of the NCA as an infringement (harm/violation) of his 11(d) Charter rights
The SCC found that s. 8 of the NCA (above) did violate s.11(d) of the CCRF (innocent until proven guilty)

- Therefore the courts had to consider if the infringement was justified under s.1 (!! S.l applies in cases where a Charter infringement is being argued !!)

What Does Section 24 (2) Tell Us?

The judge or jury cannot consider a piece of evidence while making their decision if it is a result of a violation

The Oakes Test Steps

1. Prescribed By Law
2. Pressing and Substantial
3. Proportionality

Section 1 Analysis

The Oakes Test