The Charter of Rights The Charter of Rights and Freedomsand Freedoms

Douglas BrownDouglas Brown

Pol Sci 220Pol Sci 220

January 2010January 2010

The Charter of Rights and The Charter of Rights and FreedomsFreedoms

The third pillar of Constitutional System in The third pillar of Constitutional System in Canada (after Parliament and Federalism)Canada (after Parliament and Federalism)

A Late Addition: 1982A Late Addition: 1982

The site for a new politics of rightsThe site for a new politics of rights

Parliament vs. Courts: new tensionsParliament vs. Courts: new tensions

Americanization?Americanization?

Rights and the Constitution in Our Rights and the Constitution in Our HistoryHistory

Importance of English common law and conventional Importance of English common law and conventional practicepracticeOur legacy of rights: Our legacy of rights: Magna Carta, 1213; Magna Carta, 1213; Bill of Rights, 1689Bill of Rights, 1689 UN Declaration, 1948UN Declaration, 1948 Canadian Bill of Rights, 1960Canadian Bill of Rights, 1960Also influential: Also influential: US Bill of Rights, 1789US Bill of Rights, 1789 European Convention, 1950 and Europe Social European Convention, 1950 and Europe Social

Charter, 1989Charter, 1989

Magna Carta, art. 39Magna Carta, art. 39

““No free man shall be arrested, or No free man shall be arrested, or imprisoned, or deprived of his property, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way outlawed, or exiled, or in any way destroyed, nor shall we go against him or destroyed, nor shall we go against him or send against him, unless by legal send against him, unless by legal judgment of his peers, or by the law of the judgment of his peers, or by the law of the land.”land.”

Canadian Charter of Rights and Canadian Charter of Rights and Freedoms, 1982Freedoms, 1982

-- What rights are included ---- What rights are included --

S. 2 fundamental freedomsS. 2 fundamental freedoms

Ss. 3-5 democratic rightsSs. 3-5 democratic rights

S. 6 mobility rightsS. 6 mobility rights

Ss. 7-14 legal rightsSs. 7-14 legal rights

Ss. 15 equality rightsSs. 15 equality rights

Ss. 16-23 minority language rightsSs. 16-23 minority language rights

Section 2 Section 2

Everyone has the following fundamental Everyone has the following fundamental freedoms:freedoms: a) freedom of conscience and religiona) freedom of conscience and religion b) freedom of thought, belief, opinion and b) freedom of thought, belief, opinion and

expression, including freedom of the press expression, including freedom of the press and other media of communicationand other media of communication

c) freedom of peaceful assemblyc) freedom of peaceful assembly d) freedom of associationd) freedom of association

Sections 3-5: Democratic rightsSections 3-5: Democratic rights

Right to voteRight to vote

Five-year maximum term for federal and Five-year maximum term for federal and provincial legislaturesprovincial legislatures

Provision for emergency extension of Provision for emergency extension of parliament’s termparliament’s term

A sitting of Parliament/ legislatures at least A sitting of Parliament/ legislatures at least once a yearonce a year

Sections 7-14: Legal rightsSections 7-14: Legal rights

““7. Everyone has the right to life, liberty 7. Everyone has the right to life, liberty and security of person and the right not to and security of person and the right not to be deprived thereof except in accordance be deprived thereof except in accordance with the principles of fundamental justice.”with the principles of fundamental justice.”8. secure against unreasonable search or 8. secure against unreasonable search or seizureseizure9. not to be arbitrarily detained9. not to be arbitrarily detained10. on arrest, prompt reasons, retention of 10. on arrest, prompt reasons, retention of counsel, right tocounsel, right to habeas corpus habeas corpus

Legal rights, continuedLegal rights, continued

11. proceedings in criminal matters with 11. proceedings in criminal matters with rights to be informed of offence, tried rights to be informed of offence, tried within a reasonable time, not compelled to within a reasonable time, not compelled to witness against yourself, presumption of witness against yourself, presumption of innocence, reasonable bail, etc.innocence, reasonable bail, etc.12. no cruel or unusual punishment12. no cruel or unusual punishment13. no incrimination of witnesses13. no incrimination of witnesses14. the right to interpretation if one cannot 14. the right to interpretation if one cannot speak or understand English or Frenchspeak or understand English or French

Equality rightsEquality rights

15. (1) Every individual is equal before and 15. (1) Every individual is equal before and under the law and has the right to the equal under the law and has the right to the equal protection and equal benefit of the law without protection and equal benefit of the law without discrimination based on race, national or ethnic discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or origin, colour, religion, sex, age or mental or physical disability.physical disability.

(2)..does not preclude any law, program…that (2)..does not preclude any law, program…that has as its object the amelioration of conditions of has as its object the amelioration of conditions of disadvantaged individuals or groups…disadvantaged individuals or groups…

Sections 16-22: Language rightsSections 16-22: Language rights

English and French as official languages English and French as official languages for federal Parliament and government, for federal Parliament and government,

Right to use either language in parliamentRight to use either language in parliament

Right to use either language in federal Right to use either language in federal courtscourts

Right to communicate with federal public Right to communicate with federal public service in either languageservice in either language

Similar rights in New BrunswickSimilar rights in New Brunswick

Section 23: Minority Language Section 23: Minority Language Education RightsEducation Rights

Right to have children receive primary and Right to have children receive primary and secondary education in the minority secondary education in the minority language in a province, where numbers language in a province, where numbers warrant…warrant…

……if parents’ mother tongue was the if parents’ mother tongue was the minority languageminority language

……if parents went to primary school in if parents went to primary school in CanadaCanada

Canadian Charter of Rights and Canadian Charter of Rights and FreedomsFreedoms

-- Interpretation and Enforcement ---- Interpretation and Enforcement --

S.1 Guarantee and limitationsS.1 Guarantee and limitations

S. 24 enforcementS. 24 enforcement

S. 25 non-derogation of Aboriginal rightsS. 25 non-derogation of Aboriginal rights

S. 28 equality of application to men and S. 28 equality of application to men and womenwomen

S. 33 “notwithstanding” legislative overrideS. 33 “notwithstanding” legislative override

Section 1Section 1

““1. The 1. The Canadian Charter of Rights and Canadian Charter of Rights and FreedomsFreedoms guarantees the rights and guarantees the rights and freedoms set out in it subject only to freedoms set out in it subject only to such reasonable limits prescribed by such reasonable limits prescribed by law as can be demonstrably justified in law as can be demonstrably justified in a free and democratic society.”a free and democratic society.”

Section 1 interpretationSection 1 interpretation

Three stage test…Three stage test… Does the law infringe a Charter right ?Does the law infringe a Charter right ? If so, is the law a reasonable limit (see If so, is the law a reasonable limit (see OakesOakes

test) on that right, that is it demonstrable test) on that right, that is it demonstrable justifiable in a free and democratic society?justifiable in a free and democratic society?

If not, what is the appropriate remedy – to If not, what is the appropriate remedy – to strike down all or part of the law? To suspend strike down all or part of the law? To suspend the law? To seek a broader interpretation and the law? To seek a broader interpretation and application of the law?application of the law?

Section 1 interpretationSection 1 interpretation

Chief Justice Dickson in the 1986 Chief Justice Dickson in the 1986 OakesOakes case sets out four criteria for case sets out four criteria for “reasonable limitations”:“reasonable limitations”:

1.1. Rational connection between law and its Rational connection between law and its objectivesobjectives

2.2. Minimal impairment of the rightMinimal impairment of the right

3.3. A pressing and substantial problemA pressing and substantial problem

4.4. Effects proportional to objectivesEffects proportional to objectives

Section 24: EnforcementSection 24: Enforcement

““1. Anyone whose rights and freedoms, as 1. Anyone whose rights and freedoms, as guaranteed by this Charter, have been guaranteed by this Charter, have been infringed or denied, may apply to a court of infringed or denied, may apply to a court of competent jurisdiction to obtain such competent jurisdiction to obtain such remedy as the court considers appropriate remedy as the court considers appropriate and just in the circumstances.”and just in the circumstances.”

Sections 25-32: selected pointsSections 25-32: selected points

S. 25: Charter does not “abrogate” or “derogate” S. 25: Charter does not “abrogate” or “derogate” Aboriginal rightsAboriginal rightsS. 26: a guarantee of a right in the Charter does S. 26: a guarantee of a right in the Charter does not necessarily deny other rights that may existnot necessarily deny other rights that may existS. 28: all rights to be guaranteed equally to male S. 28: all rights to be guaranteed equally to male and female personsand female personsS. 32 The Charter applies to the federal S. 32 The Charter applies to the federal Parliament and government, as well as to the Parliament and government, as well as to the provincial and territorial assemblies and provincial and territorial assemblies and governmentsgovernments

Section 33Section 33

S. 33: Legislatures [federal or provincial] S. 33: Legislatures [federal or provincial] may “expressly declare”, in an Act, “that may “expressly declare”, in an Act, “that the Act or provision thereof shall have the Act or provision thereof shall have operation notwithstanding a provision in operation notwithstanding a provision in section 2 or sections 7 to 15 of this section 2 or sections 7 to 15 of this Charter.”Charter.”

Any override is limited to 5 years (but can Any override is limited to 5 years (but can be re-enacted)be re-enacted)

Impact of the Charter– Areas of the law Impact of the Charter– Areas of the law substantially changed by Charter substantially changed by Charter

rulingsrulings Criminal code, law enforcement and Criminal code, law enforcement and prosecutionprosecutionAbortions, family lawAbortions, family lawWorkplace equity, pay equity and retirementWorkplace equity, pay equity and retirementImmigration, refugee processImmigration, refugee processUnemployment insuranceUnemployment insuranceLanguage and educationLanguage and educationAdvertisingAdvertisingaboriginal rights (as a result of other aboriginal rights (as a result of other provisions in Constitution Act, 1982 –not provisions in Constitution Act, 1982 –not Charter as such)Charter as such)

Impact of the Charter– On the Judiciary Impact of the Charter– On the Judiciary and other institutionsand other institutions

Huge increase in workload, esp. for Supreme Huge increase in workload, esp. for Supreme Court of CanadaCourt of Canada

Greater demand for social diversity and Greater demand for social diversity and sensitivity of judgessensitivity of judges

Huge constraint on policy-making process within Huge constraint on policy-making process within bureaucracybureaucracy

Major focus of legal educationMajor focus of legal education

Increased exposure, political role for judgesIncreased exposure, political role for judges

Impact of the Charter– On politicsImpact of the Charter– On politics

Empowering of litigant “Charter” groupsEmpowering of litigant “Charter” groupsIncreased tensions: judiciary versus Increased tensions: judiciary versus legislatureslegislaturesPromotes pan-Canadian values Promotes pan-Canadian values (resistance in Quebec)(resistance in Quebec)Rights discourse displaces materialist Rights discourse displaces materialist politicspoliticsCaused a conservative backlashCaused a conservative backlash