Crim 135 week 5, Ch.4 charter of rights and freedoms

The Charter emerged out of the limitations of which 1960 document and the international movement to protect human rights?

The Canadian Bill of Rights, 1960

What international declaration in 1948 influenced the development of the Charter?

The Universal Declaration on Human Rights

The Charter is entrenched in which Act, making it a fundamental part of Canadian law?

The Constitution Act

What must all legislation align with unless courts find reasonable limitations?

The Charter of Rights and Freedoms

The Canadian Bill of Rights was a federal statute that applied only to what?

Federal laws and governments

What did the Bill of Rights begin codifying?

A set of core principles on which Canadians generally agree

How did the Bill of Rights affect the role of judges?

It increased their role as interpreters of the law and as checks on government power

Some argue that the Bill of Rights and the Charter undermine what principle?

Parliamentary Supremacy

Why do critics believe elected members should legislate instead of courts?

Because they are accountable to citizens through democracy

How do supporters argue the Charter strengthens democracy?

It protects inherent rights and freedoms, enabling greater citizen participation

Who drafted the Charter after nearly two decades of debate?

Prime Minister Pierre Trudeau

What was the major legal distinction between the Charter and the Bill of Rights?

The Charter is entrenched as Constitutional Law

Why do some argue that Parliamentary Supremacy hasn't been affected by the Charter?

Due to the limitations clauses in the Charter

How does the Charter restrain governments?

By enabling courts to review laws for discrimination against protected rights and freedoms

Give an example of a discriminatory law that existed before the Charter.

The Indian Act (1884) outlawed Indigenous cultural and religious ceremonies

What Act prevented minorities from voting in elections?

The Dominican Elections Act (1900)

When were Indigenous people granted the right to vote in Canada?

1960

What does S.1 of the Charter state?

It is the Limitation Clause, meaning no right is absolute

What does S.2 protect?

Fundamental Freedoms (e.g., expression, religion, association)

What rights do Ss.3-6 protect?

Voting & Mobility Rights

What do Ss.7-14 cover?

Legal Rights

What does S.15 protect?

Equality Rights

What do Ss.16-23 focus on?

Language Rights

What does S.24 allow courts to do?

Provide remedies, including the exclusion of evidence

What do Ss.25-29 specifically protect?

Aboriginal rights, multicultural heritage, and gender equality

What do Ss.32-33 outline?

The application and opting-out provisions (Notwithstanding Clause)

What does S.35 recognize?

The Rights of Aboriginal Peoples in Canada

What does S.1 of the Charter state about limitations on rights?

Rights can be limited if the limits are demonstrably justifiable in a free and democratic society

Rights can be limited if the limits are demonstrably justifiable in a free and democratic society

Possession of drugs for the purpose of trafficking

What controversial legal principle did S.8 NCA introduce?

The reverse-onus clause, shifting the burden of proof to the accused

What Charter right did the reverse-onus clause potentially violate?

The right to the presumption of innocence and a fair trial under S.11

What was the key legal question in R v. Oakes?

Whether the violation of rights was demonstrably justifiable under S.1

What was the final decision in R v. Oakes regarding the violation of S.11 rights?

Yes, the section violates S.11 rights, and No, the violation is not necessary

What key legal question does the case ask about legislation?

Does the benefit derived from the legislation outweigh the seriousness of the rights infringement?

What test did the legislation fail in R v. Oakes?

The Oakes Test—there was no rational connection between possession and the presumption of trafficking

What was the result of the R v. Oakes decision?

The section of the Narcotic Control Act (NCA) was declared unconstitutional and of no force or effect

What is the key question in the proportionality test?

Does the benefit derived from the legislation outweigh the seriousness of the infringement?

Why does the law fail the proportionality test?

There is no rational connection between possession and the presumption of trafficking.

What was the result of R v Oakes?

The section of the NCA was declared unconstitutional and of no "force or effect."

What are the four fundamental freedoms under s.2?

A) Freedom of conscience and religion

B) Freedom of thought, belief, opinion, and expression

C) Freedom of peaceful assembly

D) Freedom of association

Name some key conflict areas under s.2(a).

Sunday closing laws

Accommodation of religious practices

Parental rights (e.g., blood transfusions)

Marriage solemnization

Education (e.g., curriculum, wearing of a kirpan)

Religious accommodation in court proceedings

What case found abortion laws to be a breach of s.7 and s.2(a)?

R v Morgentaler (1988).

What did Justice Wilson argue regarding freedom of conscience in Morgentaler?

The decision to terminate a pregnancy is a moral decision and a matter of conscience, protected by s.2(a).

What are some types of speech that are still considered "expression" under s.2(b) but can be prohibited?

Hate speech

Obscenity

What is the legal standard for prohibiting hate speech?

Extreme speech that goes beyond ridicule (Keegstra, Whatcott).

Why was the ban on publishing obscenity upheld?

Due to concerns about minority and equality rights (Butler, Little Sisters, Sharpe).

What does the right to association include?

The right to establish, belong to, and maintain an organization

The right of workers to collective bargaining

What concerns exist about association rights in national security cases?

Association with "terrorist" groups may be targeted

Unclear definitions and suspension of Charter procedural rights

Lack of accountability for CSIS

What are the three main democratic rights under the Charter?

The right to vote and run for office (s.3)

A maximum of 5 years for government terms, except in war or emergencies (s.4)

Parliament must sit at least once every 12 months (s.5)

What case upheld spending limits in elections?

Harper v. Canada (2004).

What case ruled that prisoners cannot be denied the right to vote?

Sauvé v. Canada (2002).

What three main rights does s.6 grant?

The right to enter, remain in, and leave Canada

The right to move and reside in any province

The right to pursue employment in any province

What are the two limitations on mobility rights?

General provincial laws (cannot discriminate based on province of residence)

Residency requirements for social services

What three rights are protected under s.7?

Life, liberty, and security of the person.

What case ruled that the abortion law violated s.7 rights?

R v Morgentaler (1988).

What case struck down prostitution laws as unconstitutional under s.7?

Bedford (2013)

What does s.8 protect against?

Unreasonable search and seizure.

When do police need a warrant under s.8?

In most cases, except in certain emergencies or special circumstances (e.g., R v Tessling - heat-seeking helicopters).

What does s.9 protect against?

Arbitrary detention or imprisonment.

What case upheld random spot checks as justifiable under s.1?

R v Ladouceur (1990).

What rights are granted upon arrest under s.10?

The right to be informed of reasons for detention

The right to a lawyer

The right to remain silent

What case established the right to free legal aid upon request?

A: R v Brydges (1990).

R v Brydges (1990).

What does s.11 protect?

Rights of individuals charged with an offence (e.g., right to a fair trial, presumption of innocence, no double jeopardy).

What case set limits on trial delays?

R v Jordan (2016).

What does s.12 protect against?

Cruel and unusual punishment.

What does s.15(1) guarantee?

Equality before and under the law without discrimination.

What does s.15(2) allow?

Affirmative action programs to help disadvantaged groups.

What are Canada's official languages?

English and French.

What does s.23 guarantee?

Minority language education rights.

What remedies can courts grant for Charter violations?

Strike down unconstitutional laws

Read down or read in provisions

Provide exemptions for affected individuals

Order damages or injunctions

What does s.25 protect?

Aboriginal rights from being overridden by the Charter.

What does s.35 recognize?

Existing Aboriginal and treaty rights.

What does s.33 allow governments to do?

Pass laws that override certain Charter rights for up to five years.

What rights cannot be overridden by s.33?

Democratic rights, mobility rights, and legal rights in criminal cases.

What province frequently used s.33 to require French-only signs?

Quebec

Name some strengths of the Charter.

Protects fundamental rights

Allows judicial review

Promotes equality

Name some criticisms of the Charter.

Judges have too much power

Charter focuses on individual rather than collective rights

Legal challenges are expensive

Some rights can be overridden by s.33

What are the four fundamental freedoms under section 2 of the Charter?

Freedom of conscience and religion

Freedom of thought, belief, opinion, and expression (including media)

Freedom of peaceful assembly

Freedom of association

What is hate speech under Canadian law?

Expression that advocates genocide or incites hatred against an identifiable group, which is criminally prohibited under the Charter and justified under section 1.

What democratic rights are protected under sections 3-5 of the Charter?

The right to vote and run for office (s.3)

A maximum 5-year term for Parliament and legislatures, except in emergencies (s.4)

The requirement for Parliament and legislatures to meet at least once a year (s.5)

What are the mobility rights guaranteed under section 6 of the Charter?

The right to enter, remain in, and leave Canada, as well as the right for citizens and permanent residents to move and work in any province.

What does "arbitrary detention" mean under section 9?

Being stopped, held, or imprisoned without reasonable grounds or legal justification.

What does section 15 of the Charter protect?

The right to equal protection and benefit of the law without discrimination based on race, sex, age, disability, religion, or other personal characteristics.

What is the purpose of section 33 of the Charter?

It allows Parliament or provincial legislatures to override certain Charter rights (except democratic, mobility, and language rights) for up to five years

What is judicial review in the context of the Charter?

The power of courts to determine whether laws comply with the Charter and to strike down laws that violate constitutional rights.

What is the purpose of section 1 of the Charter?

It allows governments to justify limits on Charter rights if they are reasonable and can be demonstrably justified in a free and democratic society.

What is the Oakes Test used for?

A legal test used to determine if a law that limits a Charter right is justified under section 1. It requires:

A pressing and substantial objective

A rational connection between the law and its goal

Minimal impairment of rights

Proportionality between the benefit and harm

What are legal rights under sections 7-14 of the Charter?

Rights that protect individuals in legal proceedings, including:

Right to life, liberty, and security (s.7)

Protection against unreasonable search and seizure (s.8)

Right not to be arbitrarily detained (s.9)

Rights upon arrest or detention (s.10)

Right to a fair trial (s.11)

Protection from cruel and unusual punishment (s.12)

What does section 8 protect individuals from?

It protects against searches or seizures by the government without reasonable grounds or a valid warrant.

What is reverse onus in a legal context?

When the burden of proof shifts from the prosecution to the accused, requiring the accused to prove something rather than the government.

What does section 2(b) of the Charter protect?

The right to express opinions, beliefs, and ideas, including through speech, writing, art, and media, subject to reasonable limits (e.g., hate speech laws).

What does section 24(1) of the Charter allow individuals to do?

It allows individuals to apply to a court for a remedy if their Charter rights have been infringed.

What does section 24(2) say about illegally obtained evidence?

Courts may exclude evidence obtained in violation of Charter rights if admitting it would bring the justice system into disrepute.

What does "ultra vires" mean in constitutional law?

A law or action that is beyond the legal power of the government body that passed it

What is "stare decisis" in the legal system?

The principle that courts should follow precedents set by previous decisions in similar cases.

What does "principles of fundamental justice" mean under section 7?

The basic legal principles that ensure fairness in the legal system, such as the right to a fair trial and protection against arbitrary government action.

What is constructive discrimination?

Policies or practices that appear neutral but have a discriminatory effect on certain groups.