Law 12 - Canadian Charter of Rights and Freedoms

how to analyze a charter case

1. does it apply?

2. has a charter or freedom been infringed?

3. does the “reasonable limits clause” justify the infringement?

4. if not, is there a remedy under the charter?

Section 1

reasonable limits

• our rights and freedoms are subject to '“reasonable limits”

to examine if there are reasonable limits…

1. is there a rational connection between limiting an individuals rights and the objective of a law in question?

2. does the law or govt action interfere with rights and freedoms as little as possible

3. are the effects of the limitations proportional to the objective?

Notwithstanding Clause

due to provinces fearing the charter, a constitutional law, gave govt too much power of provincial matters

applies to

• fundamental freedoms (2)

• legal rights (7-14)

• equality rights (15)

enabled legislation to be passed in spite of the fact it may infringe on some rights and freedoms

• reviewed every 5 years

example of notwithstanding clause

Ford V Quebec

• In 1988, Bill 101 required all public signs to be in French

• The Supreme Court of Canada ruled this was in violation of our Freedom of Expression

• Using the Notwithstanding Clause, Bill C 178 was passed, allowing Quebec’s French-only law on public sign to stay in effect

democratic rights of Canadians

sections: 3, 4, 5

mobility rights

section 6

• every citizen has the right to enter, leave, or remain in canada

• allows provincial govt to impose restrictions on mobility rights

fundamental freedoms

section 2

• freedoms; expression, religion, etc.

• limitations on freedoms

example of limitations on fundamental freedoms

supreme court of canada placed limits on tobacco manufacturers

freedom of religion

section 2(a)

cannot be forced to act in a way that goes against your beliefs or conscience

• may conflict with other freedoms

example of basic religious beliefs in conflict with other freedoms

• Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 

• Upheld the right of a practicing Sikh to wear a kirpan on school property

freedom of peaceful assembly

section 2(c)

• the right to participate in public demonstration

• if there is threat of violence, there can be charges: unlawful assembly or rioting

Ex. Environmental protests, workers protests, social justice activism

freedom of association

section 2(d)

• the right to join various groups (unions, sport teams, etc.)

• association can be limited (convicted felons may have a condition not to associate with known criminals)

R. V. Keegstra

freedom of expression 2(b) case

• Alberta teacher claimed “holocaust didn’t happen”; charged with hate speech

• court agreed that Canada’s hate law’s infringed on the Charter guarantee of freedom of expression

• however, a majority of the court agreed the infringement could be justified

R. V. Butler

freedom of expression 2(b) case

• charged with possessing, selling, and exposing obscene material.

• court agreed laws did infringe on our freedoms of expression

• felt it was reasonable to impose these laws out of concern for potential victims

legal rights

Section: 7, 8

• charter sections that protect personal and privacy rights and safeguard procedural rights in the criminal justice system.

• these include rights in areas such as searches, detention, and interrogation

• if the rights of an accused party is violated, they may seek a remedy

remedy

the way in which a wrongdoing is fixed by the court or other judiciary body

limitations to section 8

section 8: security and seizure

• ”Everyone has the right to be secure against an unreasonable search and seizure”

Section 24(2): exclusion of evidence

• “evidence obtained during an illegal search may be thrown out”

arbitrary detention

section 9

• everyone has the right to not be arbitrarily detained or imprisoned

arbitrarily

an absence of sufficient legal reasoning

right to be informed for reasons for detention or arrest

section 10(a)

• ensures they are notified in a manner they can understand

• ability to retain council (to be informed of ability to hire and speak to lawyer)

• section 10 also assures “lawful detention”

rights at trail

section 11

rights on being charged with an offence

• right to be told what the offence is without delay

• to be tried within a reasonable time period

R. V. Askov, 1990

• Accused and charged with conspiracy to commit extortion

• After two years, his trial date had still not been set

• Argued his rights to a reasonable trial had been violated

• Court agreed to a stay of proceedings (court order to stop trial proceedings until a certain condition is met)

• 50,000 cases issued a stay in Ontario as a result of the Askov ruling.

section 11

• an accused cannot be forced to testify

• anyone charged cannot be denied reasonable bail without good reason

• everyone has the right to a trail by jury if the case involves serious criminal charges

cruel and unusual punishment

section 12

• in 1977(pre-charter), it was defined as excessive to the standards of decency, or grossly disproportionate to what is appropriate

protection against self-incrimination

section 13

• protects witnesses from self incrimination

• this right is suspended if one is committing perjury

self incrimination

intentionally/ unintentionally giving information that could be used as evidence against yourself in a criminal case

perjury

intentional act of making false statements under oath or in legal documents, knowing they are untrue, with the aim to mislead in a legal proceeding

right to an interpreter

section 14

• Interpretation does not have to be perfect, but must be continuous, precise, impartial, competent, and occur at same time as the proceedings

Carter V. Canada, 2015

• Assisted suicide was previously prohibited under the Criminal Code of Canada as a form of homicide. This violates S.7 (S.15 also challenged)

• The court ruled that adults with grievous and irremediable medical conditions are entitled to physician-assisted suicide.

• Bill C-14, passed by the Parliament of Canada in June 2016, amended the Canadian Criminal Code so as to legalize both physician-administered euthanasia (PAE) and physician-assisted suicide (PAS), and to govern access to both procedures

equality rights

• discrimination against race, nationality, ethnicity, religion, sex, age, and disability

• courts have added citizenship, marital status, and sexual orientation

equality’s 4 meanings

1. equal before the law (everyone is subject to the same legal rules and processes, regardless of status or position)

2. equal under the law (laws are applied uniformly to all individuals without discrimination based on personal characteristics)

3. equal benefit

4. equal protection

language & general rights

section: 16-22

• The Charter proclaims English and French are Canada’s two official languages

• Laws of Canada must be printed in French and English

• Canadians have the right to use either language when dealing with federal government offices where there is sufficient demand for bilingual services

issues with language

• education is a provincial matter

• New Brunswick is Canada’s only official bilingual province

aboriginal rights

section 25: guarantees existing rights of aboriginal peoples

section 35 (constitutional act of 1982): recognizes existing aboriginal and treaty rights

• These constitutional protections set the stage for a variety of cases to be heard on the nature and scope of Aboriginal Rights (ex. Fishing, hunting).

multicultural rights

section 27

• courts and govt must consider varying cultural backgrounds at all times

section 52 of constitutional act, 1982

laws courts can

• strike down a law (get rid of the law & give govt time to make new law)

• read in a law (add something to a current law)

• read down a law (take something out of a current law)

( only legislative branch makes laws)

remedies of the charter

section 24

• if your rights and freedoms have been infringed upon, you can apply for a remedy

• involves excluding as case (ex. illegal search and seizure)

judicial activism

judges interpreting laws to create new legal precedents or policies beyond traditional boundaries

• can lead to rulings that significantly influence policy and societal changes, sometimes overstepping the conventional role of the judiciary in relation to other branches of govt

Human Rights

• govt have passed laws that make discrimination illegal

• human rights laws apply to both private and public actions by any individual or organization, business or govt body, if they engage in discrimination or violation of a human right

civil rights

protected by charter

• involve relationship between govt actions (laws & policies) and individuals

discrimination

• prejudice and stereotyping are not illegal

• human rights legislations protects against discrimination

• discrimination occurs when a person acts on a prejudice or stereotype to treat others unfairly

• in law, discrimination can be intentional or unintentional

intentional vs unintentional discrimination

intentional

• aka “differential treatment”

• occurs when a person or organization commits a discriminatory act

• human rights make this illegal

unintentional

• occurs when organizations or individuals treat others unfairly, yet not aware their actions are discriminatory

human rights legislation

• 1977; canadian govt passed the human rights act

• provinces/ territories also have their own human rights legislation that covers situations that are under their authority

• based on the universal declaration of human rights

enforcement of human rights legislation

• If you believe your human rights have been infringed upon, you can file a complaint with the human rights commission

• If the commission decides you have a valid complaint, there will be an investigation

• If an investigating office cannot arrive at a solution, conciliation takes place

• If no solution is reached, a Human Rights Tribunal will hear the case

assessing a human rights case

• Is there discrimination

• Does the discrimination cause harm

• Is there a solution or remedy?

how to analyze a charter case

• sets the standard for testing/ determining reasonable limits

• Drug case; large amounts of cocaine, does it have intention to distribute ??