Rights and Freedoms Lecture Review

2.1 - The CCRF (General)

  • Difference between rights and freedom:

    • Rights: Legally enforceable entitlements individuals have, often protected under laws or constitutions. Examples include voting rights, freedom of expression, and the right to a fair trial.
    • Freedom: Refers to the state of being free; the power or right to act, speak, or think as one wants without hindrance or restraint. Freedom is broader and typically encompasses various rights.

  • Information on Bill of Rights and CCRF:

    • The Canadian Bill of Rights (1960) was the first federal law to protect human rights and fundamental freedoms in Canada, but it was limited in scope as it applied only to federal laws.
    • The Canadian Charter of Rights and Freedoms (CCRF) was enacted in 1982 as part of the Constitution Act, providing a broader range of rights and freedoms and applying to all levels of government in Canada.

2.2 - History of Rights and Freedoms

  • Bill of Rights:

    • Enacted in 1960, aimed at recognizing and protecting the rights of Canadians. Despite its significance, it lacks constitutional entrenchment, limiting its enforceability.

  • Royal Proclamation of 1763:

    • Issued by King George III, it established protocols for European settlement of Indigenous lands in North America. This proclamation recognized Indigenous land rights but was often disregarded.

  • BNA Act of 1867:

    • Also known as the British North America Act, it created the Dominion of Canada, outlining the division of powers between federal and provincial jurisdictions, but did not specifically enumerate rights and freedoms.

2.3 - CCRF (Brief Overview of sections 3-14, s. 15)

  • Democratic Rights (s.3-5):

    • Section 3: Right to vote and run for office in elections.
    • Section 4: Parliament must sit at least once every 12 months.
    • Section 5: Right to participate in legislative assemblies.

  • Legal Rights (s.8-14):

    • Section 8: Protection against unreasonable search and seizure.
    • Section 9: Right not to be arbitrarily detained or imprisoned.
    • Section 10: Rights on arrest or detention, including the right to be informed of the charge and to retain counsel.
    • Section 11: Rights in criminal and penal matters.
    • Section 12: Right not to be subjected to cruel and unusual treatment or punishment.
    • Section 13: Protection against self-incrimination.
    • Section 14: Right to an interpreter in legal proceedings.

  • Equality Rights (s.15):

    • Section 15: Guarantees every individual equal protection and equal benefit of the law without discrimination.

  • Vriend v. Alberta:

    • A landmark Supreme Court case where the court ruled that the omission of sexual orientation from the Alberta Individual Rights Protection Act constituted discrimination and violated the equality rights outlined in s.15 of the CCRF.

2.4 - Fundamental Freedoms

  • s.2 of the CCRF (what are the four fundamental freedoms):
    • Freedom of conscience and religion: The right to hold and practice one's beliefs and religion without interference.
    • Freedom of thought, belief, opinion and expression: The right to express one's ideas and opinions freely.
    • Freedom of peaceful assembly: The right to gather peacefully for demonstrations or protests.
    • Freedom of association: The right to join and form groups or associations, such as unions and political parties.

2.5.1 - Charter Enforcement and Oakes Test

  • Which two sections of the Charter allow society/government to limit a person's or group of people's rights:

    • Section 1: Allows reasonable limits to rights and freedoms in a free and democratic society.
    • Section 33 (the Notwithstanding Clause): Permits governments to override certain sections of the Charter for a limited time, ensuring democratic freedom of choice even at the expense of certain rights.

  • How to apply and use the Oakes test:

    • Oakes Test Overview: A legal test used by courts to determine if a law that limits rights is justified under s.1. The test includes two main steps.
    1. Pressing and Substantial Objective: The government must demonstrate that the law has a pressing and substantial objective.
    2. Proportionality Requirement: If passed, the law must be proportionate to the objective, assessed through three sub-steps:
      • Rational Connection: The law must be logically connected to its objective.
      • Minimal Impairment: The law must impair rights as little as possible.
      • Balance between Effects: A weighing of the benefits of the law against negative impacts on rights.

  • s.24 of CCRF:

    • This section allows individuals to apply to a court for a remedy when their rights or freedoms have been infringed or denied.
    • Also includes the Grant Test: Specifically addresses the admissibility of evidence, allowing for the exclusion of evidence obtained in violation of a person's rights.