3 - Charter of Rights and Freedoms

Charter of Rights and Freedoms

Is an appendix to the Constitution Act of 1982 and protects from government interference. It is entrenched in the Constitution.

How does the Charter of Rights and Freedoms protect against Government Interference?

Protects from government passing discriminatory laws, from government departments making discriminatory decisions and from government officials discriminatory conduct

Section 2 of the Charter

Fundamental Freedoms (expression, religion). Rights are not absolute and are subject to a reasonable limit (balance with the rights of society). Everyone is protected

Sections 7-14 of the Charter

Legal Rights (life, liberty and security of the person)

Section 15 of the Charter

Equality Rights (right to be treated equally). Every individual is protected

Sections 3-5 of the Charter

Democratic Rights (right to vote)

Section 6 of the Charter

Mobility Rights (right to move freely in Canada)

Sections 16-22 of the Charter

Language Rights (French and English are the official languages in Canada)

Section 23 of the Charter

Minority Language Education Rights

Sections 25 and 35 of the Charter

Aboriginal Rights

Section 27 of the Charter

Multicultural Rights

Canadian Bill of Rights (1960)

Precursor to the Charter and was a weak attempt to protect some basic rights and freedoms

Types of Rights in the Canadian Bill of Rights

• Life, liberty and security of the person

• Equality rights 9in limited areas)

• Fundamental freedoms (more limited)

• Legal rights (if charged with an offence)

Why was the Bill of Rights so Weak?

• Limited areas

• Narrow in scope

• Not a constitutional document (it was an ordinary piece of legislation)

• No power to strike down legislation

• Narrowly construed by courts

Who is protected under the Charter?

Depends on the section

Section 1 of the Charter

Charter rights can be limited where those limits can be justified in a free and democratic society. Oakes test.

Section 24 of the Charter

Remedies available if rights infringed or denied

Section 32 of the Charter

Application section (who we are protected from)

Section 33 of the Charter

Notwithstanding clause (also called the “opting-out clause” or “sledgehammer clause”

S. 24 (1)

Right to seek a remedy if rights are violated

S.24 (2)

Exclusion of evidence remedy. If a evidence was obtained in a way that infringed charter rights it can be excluded since it “would bring the admission of justice into disrepute”

Section 52 of the Charter

Courts have the power to “strike” laws if they violate the charter

Oakes Test

4 step test to prove that gov law was a reasonable limit to infringe upon charter rights. Courts must decide that is was a balancing of rights

Notwithstanding Clause

Enables a government to insert, into a law, a provision saying that certain sections of the charter (s.2 and 7-15) cannot be sued to strike that law down. It does NOT affect democratic rights (s.3-5). was put into the charter to appease Quebec when the charter was introduced

Fundamental Freedoms

Religion (s.2 (a)), Expression (s.2(b)), Peaceful Assembly (s. 2(c)), Association (s.(d))

Charter Rights

Democratic (ss.3-5), Mobility (s.6), Legal (s.7-14), equality (s.15), language (ss.16-23)

Limitations

Reasonable limits (s.1), Applies to gov only (s.32), Notwithstanding clause (s.33)

Remedies

Role of the court (s.24), Order “appropriate and just” remedies (s.24(1)), Exclude evidence (s.24 (2)), Strike law (s.52)