Law 2101 The Canadian Charter of Rights and Freedoms

The Primer on Rights in the Charter

• Protection on the individual rights and freedoms

• Human rights that are invisible and interconnected.

• Rights AGAINST the State.

  • Negative Rights

• Obligations OF the State.

  • Positive Rights

Explain the history of Canadian Human Rights.

• Inherited common law system from the UK to protect Civil liberties.

• Common Law: Rights derived from Statute (Parliamentary Supremacy)

• 1962: Ontario Provincial Human Rights Code.

• 1982: Constitution Patriated, (including Charter)

  • S. 52 Supremacy Clause.

Where is the Charter applicable?

• Charter exclusively applicable to Government action within its authority only. For FED and PROV

What does the Charter protect? (S. 1-15, 33)

S. 1, Reasonable Limits

S. 2, Fundamental Freedoms

S. 3-5 Democratic Rights

S. 6 Mobility Rights

S. 7-14 Legal Rights

S. 15 Equality

S. 33 Notwithstanding Clause

What are the ways to interpret the Charter. (6)

1. It protects every individual

2. Vague - rights can encompass a broad range of things.

3. Originalism, should rights hold OG meaning of the time of writing.

4. Construction, develop sub rules for interpretation, OG meaning + New Reality.

5. Living Constitutionalism

6. Purposiveness, Look at actual purpose of the text.

Explain Charter limits: Reason Limits.

• S. 1, Guarantee that rights and freedoms set out are subject ONLY to reasonable limits prescribed by law.

• Limits must be justifiable.

• This is done through the OAKES TEST:

  1. Define right and determine if there is an infringement.

  2. If yes, determine if it is justified.

  • Passing the test = justified infringement = constitutional

Explain the steps to the Oakes Test

1. Is there a pressing and substantial objective (is the law important enough?)

2. Rational connection between the objective and the infringement. (does there need to be an infringement to achieve the object.)

3. Minimal Impairment, this is important and if there another way to impair less.

4. Proportional effect, is the loss proportional to the objective.

Explain Irwin Toy v. Quebec and the Oakes Test.

• Pre Charter (1980)

• Challenged against the consumer protection Act that banned advertising to children under 13.

• Argued it was a violation of the freedom of expression. (Commercial expression)

• OAKES

  1. Pressing and Substantial: YES

  2. Rational Connection: YES

  3. Minimal Impairment: YES (they didn’t restrict advertising for all children)

  4. YES

Explain the Notwithstanding Clause

Allows the Courts to bypass or deem rights to have no force or effect. Prospective only.

Rarely used, but a major reason why the Provinces adopted the Charter.

• S. 33 (1): Applies to S. 2, 7-15 only.

• S. 33 (2): Provision only has effect for 5 years

  • Ex. Alberta prohibited same sex marriage 2000

How does a Charter case happen?

• When there is an interference in the rights and freedoms of a person by the State.

• In ordinary law enforcement (ex. Search and seizure) OR a new law even when it is not being enforced.

Who are the parties in a Charter case?

• The Claimant (plaintiff) and the State (Often The Attorney General)

  • Presumption that legislation is constitutional, therefore the burden of proof is on the plaintiff.

• Interveners: Other parties, ex. Civil Liberty organizations. (those that feel they have a new perspective to bring a new perspective)

• On appeal the sides switch if the previous decision was with the Plaintiff.

What is “Standing”?

• To be affected by the law, you need this to be able to bring a case.

• There must be:

  1. Serious question of constitutionality

  2. Plaintiff is directly affected or has a genuine interest.

  3. There are no other means to bring it before court

What is S. 24?

(1): Anyone whose rights guaranteed by the Charter, have been infringed upon may apply to court within jurisdiction to obtain an appropriate remedy. (Ability for courts to provide remedy).

(2): Admission of evidence which was obtained through an infringement of a right will not be permissible unless the court deems the infringement to be permissible. (OJ Simpson)

Explain the S.52 remedy.

Supremacy Clause:

1. Striking Down: To invalidate the act or parts of the act.

   • Suspend Declaration: Leave the force of the legislation for time so the government can make more appropriate legislation.

2. Reading Down: Narrow the scope to make it less offensive.

3. Reading In: Assume the law is there even when it is not written. (ex. Gay Marriage)

Explain s. 24(1) remedy. (3)

Involves:

• Declaration

• Injunction (Judicial order to stop)

• Damages

Explain the Schachter v. Canada Case

• Schacter, father of newborn applies for benefits under the Unemployment Insurance Act and is denied because the benefits only apply to mothers and adoptive parents.

• Charter Claim: Infringed s. 15 Equality, SCC Agreed.

• 3 Questions asked under the S.52

  1. What is the extent of the inconsistency?

     • Oakes Test

  2. Can the inconsistency be dealt with alone? (Reading in?)

     • Only for clear cases.

  3. Should the declaration be temporarily invalid?

When can laws be read in?

Clear Cases:

1. Legislation’s objective is obvious, Will further the objective or constitute less interference.

2. The means used by the legislature to further objective is not so unambiguous that reading in would constitute and unacceptable institution.

3. Does not pose significant budgetary costs.

When can legislation be temporarily declared invalid?

1. Striking down doesn’t pose a danger to public

2. Striking down would threaten the rule of law.

3. When it suffered from under inclusiveness.

What is S.2(b)?

(b)Freedom of thought, belief, opinion, expression, including press and other media communication.

Expression: Conveys or attempts to convey meaning:

1. Necessary for truth seeking

2. Necessary for social and political participation

3. Cultivates diversity and human flourishing.

What is the spectrum of speech? (3)

• Political Speech: Deemed fundemental for democracy, has most protection.

• Commercial Speech: less protection (Irwin Toy).

• Hate Speech: Least protected. Marginalizes individuals based on group membership, more thandistress.

Explain the Saskatchewan (Human Rights Commission) v. Whatcott

• Whatcott charged for spreading anti-gay flyers in the community against the s.14 HR Code.

• Argued it was against his Freedom of Expression.

• Ruled that the limitation on freedom of expression under section 14 was prescribed by the law within s.1

What is S. 15?

(1): Every individual is equal before and under the law. Equal protection and benefit.

(2): Does not apply to laws with the objective of amelioration (ex. affirmative action)

Explain Withler v. Canada (Attorney General)

• Benefits to civil servants and members of the armed forces and their families which was pursuant on age.

• Defined discrimination in this case as “(part 1)a distinction, whether intentional or not based on group relation or personal characteristic that (part 2) disadvantages or advantages you”

Explain R v. Kapp

• BC law establishes than only Aboriginal people could fish for salmon in the Fraser River. A group of non-Aboriginal men fish there as a form of protest.

• Under s.15(2) the government is capable of pro-actively combating discrimination in an effort for amelioration.

• HERE:

  1. The program had remedial and ameliorative purposes.

  2. program targets disadvantaged groups in enumerated and analogous grounds.

What are enumerated and analagous grounds?

Enumerated: Race, ethnicity, nationality etc.

Analogous: Grounds of personal characteristics that are changeable at an unacceptable cost to personal identity.