class 12: law, citizenship, and human rights 2

types of rights covered by the charter

civil rights

political/democratic rights

legal rights

equality rights

group rights

civil rights

fundamental freedoms: s2

mobility rights: s 6

political/democratic rights

right to vote: s3

new election every 5 years: s4

legislature must meet at least once a year: s5

legal rights

rights when faced with possibility of detention

life liberty and security of the person: s7

unreasonable search and seizure, right to having a lawyer, trial rights: s8-14

equality rights

equal protection under the law: s15

charter should be interpreted to respect multicultural heritage: s27

charter should be interpreted to respect equal rights of men and women: s28

group rights

some groups within canada have particular rights

language rights: ss16-22

minority language education: s23

what rights does the charter not cover

socio economic rights

does not mention education, healthcare, income

important points to remember about the charter

rights are not absolute: s1 (subject to reasonable limits)

rights are subject to override: s33 (notwithstanding clause)

rights deliberately described in broad language: s2 (fundamental freedoms described broadly)

what is meant by expression in section 2b of the charter

any attempt to convey meaning, except violence

what is the basic process of applying the charter to a case

does the charter apply to this case?

is a charter right infringed in this case?

can the infringement be reasonably justified?

if not justified, what is the remedy?

what does the charter apply to?

government and legislature

legislation and government action

government actors

how to determine if a charter right is infringed

interpretation of scope and rights

large and liberal interpretation, purposive

how to tell if the infringement can be justified

is the infringement prescribed by law?

is the infringement justified (Oakes test)

is the infringement proportionate?

Oakes test

is there a pressing and substantial objective for the infringement?

how to determine if the infringement is proportionate

rational connection between the infringement and objective

minimal impairment of the right

is harm avoided greater than harm caused (proportionality)

what is the appropriate remedy if the infringement cannot be justified

section 52 for legislation

section 24 for government action

R v butler facts

1992 decision at SCC

butler is the owner of avenue video

charge with anti obscenity provisions under s.163 of the criminal code

section 163 criminal code

163 (1): everyone commits an offence who has obscene material

163(8): any publication with the undue exploitation of sex, crime, horror, cruelty, violence is obscene

R v Butler legal issues

1) whether the definition of obscene in s163(8) infringes s2b of the charter

2)if so, can the infringement be justified under s 1

R v Butler majority interpretation

undue exploitation if sex is coupled with violence, degrading or dehumanizing, or employs children in its production

result of R v Butler

no violation of charter

rational connection

minimal impairment

harm avoided greater than infringement

hak v Quebec facts

2019: “bill 2 “ promoting lactite of Quebec

s6: prohibited certain representatives of the state from wearing religious symbols

s8: certain personnel must deliver services with their faces uncovered

s30: invokes s33 of the charter

who did s 6 of bill 2 apply to

court officials, government lawyers, peace officers, teachers, principlas

who did s 8 of bill 2 apply to

government departments and agencies, municipalities, public transit, school boards, childcare, health services

who ruled on has v quebec

quebec superior court, justice blanchard

result of has v quebec

claimed under s 2 dismissed

clams under s 3 and s23 allowed

appeal rejected

what claims under s3 of the charter were allowed

s3 applies to members of the quebec legislature, but s8 of the bill did not apply to members of legislature

what claims under s23 of the charter were allowed

s23 applied to members of English school boards, but sections 6 and 8 do not apply to members of English language school boards

why were claims under s 2 of the charter dismissed

section 30 invoked the notwithstanding clause (s33), which dismisses section 2, 7-15 of the charter

constitutional rights protection critiques from the left

glasbeek and mandel

failure of judges to protect rights

threat to democratic action

failure to protect socio-economic rights

BUT there has been effective protection of some rights

constitutional rights protection critiques from the right

the threat of judicial activism: broad language and section 1 of the charter, judges lack of legitimacy/capacity, the court party

BUT judges key role is to interpret broad wording enacted by legislatures

charter dialogue theory

argues that striking down legislation is one part of an ongoing dialogue between courts and legislature

section1: court determines the scope of the right, the government gets to respond and argue that the limitation of the legislation is justifiable

legislative response: government can amend legislature after it is struck down

section 33: government can invoke if they still disagree with courts

arbour and lafontaine - charter and the rights revolution

unique structure of the charter contributed to its early impact

democratic choice of subjecting majority will to constraints

importance of section 1 and section 33

expansion of equality rights, legal rights

arbour and Lafontaine - areas for improvement

social and economic rights - problem of poverty

access to justice - no justice without access

major elements of arbour and lafontaines argument

charter as a contributor to social change

liberal conception

charter and the rights revolution

areas for improvement

major elements of brickey and comack’s argument

jurisprudence of insurgency

marxist conception

limits of traditional marxist conceptions of the role of law

elements of jurisprudence of insurgency

brickey and comack - limits of traditional marxist conceptions of the role of law

focus on oppressive role of law

failure to recognize its potential to foster social change

brickey and comack - elements of jurisprudence of insurgency

push the rule of law to its full limit and extent

push the law to recognize groups and group rights: mobilize social movements, use class actions, advance collective rights, compact structural inequality