The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and FreedomsWhat does the Charter do?The Charter of Rights and Freedoms protects the rights of the individual by limiting the actions of the government

The Charter does not apply to private mattersJurisdictionSection 32Defines the relationship between people, organizations, and companies in Canada & the government

Applies to all federal & provincial governments & their organizations

Does not apply to issues between citizensSee provincial human rights codesEnforcement Section 24The Supreme Court of Canada is responsible for interpreting and enforcing the terms of the Charter

If you believe your Charter rights have been infringed or violated by the government you have the right to challenge the government in courtMust be violated by government or its agenciesThe violated right must be covered under the charterThe violation or infringement must not be within a reasonable limit

Guarantee Section 1The Charter guarantees the R&F set out in itSubject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

i.e. if a province wants to pass a law that limits a Charter right, it must prove that this limitation can be justified in a free & democratic society

R. v. OakesCriteria for Reasonable Limits (The Oakes Test)The Oakes TestR. v. OakesCriteria for Reasonable Limits:The reason for limiting the Charter must be shown to be important enough to justify overriding a constitutionally protected rightThe measure carried out to limit the right must be reasonable and logically connected to the objective for which it was enactedThe right must be limited as little as possibleThe more severe the rights limitation, the more important the objective must be

Reverse Onus against Oakes was dismissedThe Fundamental Freedoms Section 2Everyone has the following fundamental freedoms:A) freedom of conscience and religionB) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communicationC) freedom of peaceful assembly; andD) freedom of association

Reasonable limitations are necessary (so as to not infringe on other peoples rights)Conscience & Religion Section 2 AYou have the right to entertain the religious beliefs you chooseThe right to declare these beliefs openly without fearTo express your religious beliefs through practice, worship, teaching, and dissemination

Noone can be forced to act in a way contrary to ones beliefs or conscienceExcept, a childs right to survival comes first in the eyes of the law

Calgary teen to appeal transfusion ruling (p. 87)Was this limitation on the rights within a reasonable limit?

Thought, Belief, Opinion Section 2 B& Expression, Press & MediaYou are free to think and believe what you want and to publicly express your opinions through writing, speech, painting, photography, and other meansKey element in a democracy, and rarely restricted

Media are seen as the means for communicating information to the public & as a forum for speaking out on issues

R v. Robin Sharpe (p. 88, Fig. 4.6) - What do you think??Article read

Peaceful Assembly Section 2 CThe freedom to assemble for peaceful purposesi.e. demonstrating against a government action or marching for a cause

PeacefulLawful VS unlawful assembly

Unlawful assembly or riot12 or more personsDisturbs the peace tumultuouslyCauses fear in persons nearby

Freedom of Association Section 2The ability to connect with other people or groupsi.e. unions, political parties, cultural groups, educational organizations, or sporting clubs

But young offenders may be ordered not to associate with certain friendsOr convicted sexual offenders may not be allowed to associate with youth or go near schoolsPrison inmates access is restricted as such freedoms would undermine discipline and security

Lavigne v. Ontario Public Service Employees Union (p. 89)Homework!!(p. 90) #1 3Democratic Rights Sections 3 - 5The guarantee to democratic government for all Canadians

The right to vote

Democratic Rights of Citizens Section 3The right to voteEvery citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein

The Reasonable Restrictions:Age, Mental Capacity, Residence, RegistrationMembers of the JudiciaryInmates serving more than 2 years

Max Duration of Legislative Bodies S.4The right to vote & elect a new federal & provincial government every 5 years, except under extraordinary circumstances

No HoC or Legislative assembly shall continue for longer than 5 years from election

In time of real or apprehended war, invasion or insurrection, they may continue beyond 5 years if not opposed by more than 1/3 of the members of the HoC or the LA

Annual Sitting of Legislative Bodies S.5The right to question government actions and policy

There shall be a sitting of Parliament and of each (provincial) legislature at least once every 12 months

Mobility Rights Section 6The right of Canadian citizens to move in and out of the country and between provinces

Mobility of CitizensThe right to enter, remain in and leave CanadaOverridden by Extradition

Rights to Move & Gain LivelihoodTo move to, reside, and work in any province

Except for reasonable residency requirements as a qualification for the receipt of publicly provided social services

Mobility RightsExtradition: surrendering an accused person to another jurisdiction to stand trial

Federal Extradition Act: Accused persons can be sent to other countries to face trial because suppressing crime is of sufficient importance to warrant overriding the constitutionally protected right of citizens to remain in Canada

Except: Canada will not extradite people accused of capital offences to countries where the death penalty is legal as the right to life is of most importanceHomework!!(P.91 #1, 2)(P.93 #1, 3)Legal Rights Sections 7 - 11Any Canadian who becomes involved with the criminal justice system is guaranteed certain basic protections under the CharterInvestigating a crimeTrial proceedingsUse of evidence

Legal Rights Sections 12 - 14Punishment for crimesIssues related to being a witness at a trial

Legal Rights Section 7Everyone has the right to life, liberty, and security of the personYou cannot be deprived of these rights except in accordance with the principles of fundamental justice

Straightforward? Maybe not so muchRight to Life/Security of the Person V. AbortionSince a fetus is not a person, it is not afforded the protection of the right to life as stated in s.7 of the Charter Supreme Court of CanadaRight to Security of the Person V. Assisted SuicideSue Rodriguez lost her case against the Supreme Court

Unreasonable Search Section 8& SeizurePeople will not be subject to unreasonable search & seizurePolice must have a good reason for searching the person, home, or belongings of an accusedMust be conducted fairly

The Controlled Drugs & Substances Act, grants the police the power to search any place (except a residence) wehre they suspect drugs are concealed without obtaining a warrant beforehand

Arbitrary DententionSection 9or ImprisonmentEveryone has the right not to be arbitrarily detained or imprisonedCannot be held for questioning, arrested, or kept in jail by the police without good reason

Random stop checks can be justified under s. 1 of the Charter

Rights While Under ArrestSection 10or DetentionEveryone has the right on arrest or detentionTo be informed promptly of the reasons thereforTo retain and instruct counsel without delay and to be informed of that rightTo have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful

Proceedings in CriminalSection 11& Penal MattersAny person charged with an offence has the rightTo be informed without unreasonable delay of the specific offenceTo be tried within a reasonable timeNot to be compelled to be a witness in proceedings against that person in respect of the offenceTo be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunalNot to be denied reasonable bail without just causeIf acquitted of an offence, or found guilty, not to be tried for it again

Treatment or PunishmentSection 12Everyone has the right not to be subjected to any cruel and unusual treatment or punishmentSelf-criminationSection 13A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedingsexcept in a prosecution for perjury or for the giving of contradictory evidence

InterpreterSection 14A party of witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreterEquality RightsSection 15Gaurantees legal equality to all CanadiansForbids discrimination based on race, religion, national or ethnic origin, sex, age, mental or physical disabilityAllows affirmative action programs

Official LanguagesSections 16 22Confirms that Canada is a bilingual country and that citizens have the right to use the official language of his or her choice in Parliament or in any federal court

Communication with any federal institution may be in English or French, at the wish of the citizenWhen there is a sufficient demand for that language in that service

Language rights in other laws remain in effect

These language rights do not exclude rights of other languagesMinority LanguageSection 23Educational RightsPeople in a minority position in their province are able to have their children schooled in English or French

The right to have your children schooled in the same language you were schooled in, or if it was their first language learned

If one of your children is educated in English or French, then all of your children have the right to education in that language

Only if sufficient numbers demand that minority language so as to receive that instruction provided out of public funds

EnforcementSection 24Slide 3General ProvisionsSections 25 31The Charter shall not be interpreted in such a way as to interfere with native rights (25)i.e. The Royal Proclamation of 1763, Land Claim Agreements, etc.

Rights and Freedoms may exists outside of the Charter (26)i.e. The Bill of Rights; Provincial Human Rights Codes

Charter must be interpreted in such a way that supports the multicultural heritage of Canada (27)

Rights and Freedoms apply equally to males and females (28)General ProvisionsSections 25 31Nothing in the Charter detracts from any rights guaranteed to denominational, separate or dissentient schools (29)

Any references to a Province include Yukon & Northwest Territories (30)

Nothing in the Charter extendds the legislative powers of any body or authority (31)Application of CharterSections 32 3332 Applies to federal and Provincial Governments

33 Notwithstanding Clause (concerning sections 2, 7 15)CitationSections 34This is cited as the Canadian Charter of Rights and FreedomsQuestions on the CharterWhen is the infringement of a Charter right justified?Questions on the CharterWhen is the infringement of a Charter right justified?

The courts will allow our rights to be justified if all of the following steps are met:Is it prescribed by law? meaning that the law must be written in some statute

Does it have a clearly justified objective? the general objective being sought must be sufficiently important to justify overriding the Charter. There must be a purpose for violating our rights is it more important than the violation?

Does it employ a clearly justified means? the means must be carefully designed to impair as little as possible & not cause more harm that it avoidsQuestions on the CharterIf you believe one of your Charter Rights has been overridden, what can you do?Questions on the CharterIf it is established that a Charter violation has occurred, how can it be redressed?Questions on the CharterIf it is established that a Charter violation has occurred, how can it be redressed?

Invalidating legislation that offends the CharterThe law in question will cease to be used in future

Compensation for the victim

Evidence may be excluded from a criminal trialCase Studies: Legal & Illegal Searches in Schools

Case Studies: Legal & Illegal Searches in Schools

Case Studies: Legal & Illegal Searches in Schools

Case Studies: Legal & Illegal Searches in Schools

Case Studies: Legal & Illegal Searches in Schools

Case Studies: Legal & Illegal Searches in Schools

Legal Rights in a Nutshell

Legal Rights in a Nutshell

Charter Warning

Official Warning