(Chapter 5) - The Charter

POLI 101

Origins

• created as a mechanism for protection of rights

• post-war global movements

• more definitive rights culture emerging in North America in the 60s and 70s

Charter

• clear and explicit limits on what legislatures can do

• shift to a 'rights' based politics

• ensures actions of government and laws meet its standards (judicial review)

• clearly transfers powers to courts (*section 24*) - judicial empowerment

• prevents democratic majorities from using political power to violate rights (especially of minorities)

• limit to a scope on those rights

• influence/interest communities: lawyers/litigation groups made to challenge parts of the Charter

Section 1

Reasonable Limits: 

• justifications for limits having to be demonstrated

• regularly used by courts to offer definition of rights

• rights are subjected to 'reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'

• Turns Charter cases in two-stage processes

Charter cases two-stage processes

1) defendant must prove that a right has been violated (a violation test') - courts must decide if legislation violates one of the rights guaranteed by Charter

2) the government must prove that the limit is justified, in question under the terms of section 1: reasonable limits test

‘reasonable limits test’

negative: legislation is deemed unconstitutional

affirmative: legislation is “saved” by section 1, despite violating a Charter right

Section 8

guarantees everyone the right to be secure against unreasonable search and seizure

• eg. once determined that the individual was in possession of illegal narcotics, the burden of proof would be on the individual to prove they were not going to sell them

Section 11

(d): guaranteed right to be “presumed innocent until proven guilty”

New General Procedure for Section 1

1) purpose/objective of law - Oakes Test

• law must be responding to a "pressing and substantial" problem/government objective in order to justify overriding a Charter right

2) “proportionality” (means)

• suitability of the means used to pursue the law's objective

• limit right as little as possible so people are still able to feel protected by the right

• Court uses three criteria when applying test

three criteria court uses when applying Oakes test

1) are means rationally connected and non-arbitrary?

2) do means impair the right in question as little as possible?

3) does the good achieved outweigh the harm?

Section 2

Fundamental Freedoms/universal rights

Section 3-5

Democratic Rights: rights to vote, maximum term of parliament/provincial legislation - used to be a convention, now is a formal rule

Section 6

Mobility Rights: federation with multiple jurisdictions (eg. ability to move to other provinces) 

Section 7-14

Legal Rights: rights that pre-existed the Charter, part of legal culture in Canada (common law courts enforced) now are explicitly stated in the Constitution 

• used in police practices

• searches surveillance

Section 15

Equality Rights: eg. gender equality, age

Section 16-23

Language Rights: includes language education rights, providing public education for minority languages (bilingual country, French and English)

Section 27

Multicultural Heritage

Section 28

Gender Equality: separate recognition of gender equality than s. 15, procedural protections

Section 33

'Notwithstanding Clause’: gives parliament the power to override some Charter protections for five years (until re-enacted)

• Section 2, 7-15

• Not Section 28

• could be pre-empted or reactive

Pre-empted notwithstanding clause

the government writes that using the bill to prevent future court decisions from striking it down

Reactive notwithstanding clause

after a bill is passed and a court has decided that it is unconstitutional so the bill is re-passed with the same law with s. 33 written

major principles of fundamental justice

1) law must be rationally related to its purpose

2) Laws must not be over-broad

3) Laws will fail if effect is disproportionate to its objective

‘Read in’

letting the judiciary re-interpret the law when it fails to protect rights

Section 52

“Remedies”: any law that is "inconsistent" with the constitution is "of no force or effect" (the government no longer has authority to act in the way the law provided)

Section 24

includes remedies for finding a legislation in violation of the Charter

1) court can strike down a law -- if law is void, then claimant cannot be found to have breached it

2) if the law is generally sound, the court may re-word/add words to fix the problem

3) judiciary can strike down a law but delay the effect of that declaration to allow government to revise the legislation in question

4) a court may exclude evidence from trial if evidence was collected by police in a manner that violated their Charter rights

- usually exclusion of evidence works in advantage of the Charter claimant, deters police misconduct

Interveners

persons or groups with a general interest in the constitutional issue at stake but not directly involved in a case

Section 35

Recognizing Aboriginal and Treaty Rights