Chapter 9 - The Canadian Charter of Rights and Freedoms

Charter of Rights and Freedoms

• CA 1982 (constitutionally entrenched)

• Protection of fundamental rights

• Prevent democratic majorities from using political power to violate rights

• Protection of minorities

Multani v. Commision scolaire Marguerite-Bourgeoys

• Could a Sikh wear a kirpan to school? (a ceremonial metal dagger)

• No weapon policy on school property, but religious freedom

• Court reconciled two interests by allowing accommodation, so he could wear the kirpan as long as it was contained in an inaccessible cloth sheath

• Very controversial

  • Quebecers argued that claiming the rights of minorities were overtaking interests of majority

Origins of the Charter

• Protection of rights pre-exist confederation and Charter

• Movement towards more explicit protection of rights in Charter during 20th century

  • Provincial civil rights issues, some restriction of freedom in certain provinces (i.e. Alberta limited freedom of press to give stations time for feedback)

• National civil rights issues

  • Restrictions on expression, organization of Indigenous peoples

• Postwar global movements

  • Increased global consciousness of protection of rights in formal way after WWII

• Former PM Diefenbaker introduces Canadian Bill of Rights

  • Organic statute

  • Limited success due to unwillingness of SCC to use it in invalidating other acts

  • Don’t see it as strong enough, but an ordinary piece of legislation

  • Unable to use → not entrenched

• Victoria Charter (1971)

  • Similar to Charter (proposing amending formula

• Charter (1982)

  • PM Trudeau argued for it in exchange for provinces getting some of what they want

Bill of Rights

• Bill recognized and declared the existence of many “human rights and fundamental freedoms”

• 1960 - PM Diefenbaker addressed human rights issue → Canadian activists argued that Canada should abandon traditional British approach to protection of rights and to embrace America idea of constitutionally entrenched and judicially enforceable bill of rights

• legal and human rights

• Was unsuccessful because no clear direction for judicial review

• 1970s - activists argued that Canada needed a constitutionally entrenched charter of rights that applied to all levels of gov’t

  • PM Trudeau initiated the Canadian Charter of Rights and Freedoms

Fundamental Freedoms

• Section 2

• Closest to natural rights protections, universal expectations for gov’t t protect

  • More similar to other constitutions

  • Other sections are more ‘custom’ to Canadian context

• Standard liberal rights (i.e. freedom of assembly, expression)

Democratic Rights

• Section 3-5

• i.e. maximum term of provincial parliament, entrenching convention into rule

Mobility Rights

• Section 6

• In federation with multiple jurisdictions

• Ability to move throughout country with continued access to gov’t services

• Some provinces put some limits to absolute mobility

  • I.e. Quebec has healthcare restrictions between other provinces

Legal Rights

• Section 7-14

• Explicitly states right in police procedures and practices

• i.e. unreasonable search and seizure, must have warrant

  • Law of scrutiny in these sections as people likely to challenge more if it can result in sentencing

Equality Rights

Ethnic origin, gender, language protection

Language Rights

• Section 16-23

• Very specific to Canada as a bilingual country with history of tension between French and English

  • I.e. minority language education rights

Multicultural Heritage

• Section 27

• Very specific to Canada

• Constitution must be interpreted in consistent way with multicultural heritage

  • Tolerance for expression of different cultures and religions

Gender Equality

• s. 15

• Protection from notwithstanding clause, which can override some other clauses

• Demonstrates effectiveness of women’s rights movements in Canada

Section 7

• “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”

• Principles of fundamental justice:

  • Not arbitrary (law must be rationally related to its purpose)

  • Not overboard (law shouldn’t punish people it wasn’t meant to target)

  • Not grossly disproportionate (harm caused by the law can’t be way worse than the problem it’s trying to fix)

Law v. Canada

• 30 y.o. Nancy Law contested rules of Canadian Pension Plan (CPP)

• Challenged denial of survivor benefits in the CPP

  • <45 y.o. → cannot receive survivor benefits

• Argued that legislation discriminated on basis of age

• S. 15 → equality under the law, which includes age

• SCC took purposive approach (whats the purpose of equality rights?) → protected for a social purpose

• Claim failed because it didn’t fit with the understanding of the right

• Right to equality, but it isn’t what s. 15 means by equality

Section 52 Remedy

Any law that is inconsistent with the constitution is of no fore or effect.

Reading In

When a law violates the Charter by excluding a group that should be protected, the court fixes it by adding the missing protection instead of striking the law down.

Section 1

“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.”

• Limitations of rights

• Regularly used by courts to offer definition to rights

R.v. Oakes

• Developed systematic procedure for addressing s. 1 questions

• Oakes arrested by police officers who found narcotics in his possession → automatically assumed he was drug trafficking and had to prove he wasn’t

• Violated s. 11 of Charter (presumption of innocence)

• Consider whether the Narcotic Control Act might not be “saved” as a reasonable limitation of s. 11

Oakes Test

Determines whether a Charter rights violation can be justified under section 1.

1. Purpose: what’s the gov’t’s objective? Is it pressing and substantial? (i.e. controlling drug dealing to avoid hard)

2. Proportionality: response must not be too extreme compared to the goal it is trying to achieve

   1. Rationally connected? (law must actually help achieve the goal)

   2. Does the violation impair rights as little as possible?

   3. Does the good outweigh the harm?

Notwithstanding Clause

• Allows parliament/provincial legislature to temporarily override Sections 2 and 7-15 of the Charter by explicitly declaring it

• Section 33

• Last 5 years, then renewed

• Rarely used

Bill 21

• Bans the wearing of religious garb and symbols by many provincial gov’t employees

• Those who provide and receive public services must show their face

• Many people believe that the law is a violation of religious freedom and equality rights

• Uses notwithstanding clause

R.v. Morgentaler

• Supreme Court struck down abortion law under s.7 (security of the person) because hospital approval requirements caused harmful delays and unequal access; law was not in accordance with fundamental justice

• Abortion became legal in Canada by default (no criminal law regulating it)