Canadian Charter of Rights and Freedoms Chapter 2

• The Canadian Charter of Rights and Freedoms is chapter 2.

Background

• The Canadian Charter of Rights and Freedoms was entrenched in the Canadian Constitution on April 17, 1982.
• The charter protects the rights and freedoms in the constitution.
• It applies to every level of government and overcomes the limits of the previous Bill of Rights.
• Most rights are not absolute but can be limited if justified.

Reasonable Limits Clause

• Section 1 of the Charter is the Reasonable Limits Clause.
• Rights and freedoms may be limited if justified in a free and democratic society.
• Courts decide what is considered "reasonable" on a case-by-case basis.
• A person's freedom of expression may be limited if promoting hate speech.

Oakes Test

• It must be a pressing and substantial objective for the law or government action.
• The means chosen to achieve the objective must be proportional to the burden on the rights of the claimant.
• The objective must be rationally connected to the limit on the Charter right.
• The limit must minimally impair the Charter right.
• There should be an overall balance or proportionality between the benefits of the limit and its deleterious effects.

Analyzing a Charter Case

• First, determine if the Charter applies to the case.
• Second, assess whether a right or freedom in the Charter has been infringed.
• Third, consider if Section 1 justifies the infringement.
• Fourth, if not, determine if the Charter provides a remedy.

The Notwithstanding Clause

• Section 33 of the Charter is also referred to as the "overriding clause" or the "opt-out clause".
• Governments can enact or maintain laws notwithstanding the fact they may violate rights and freedoms in the Charter.
• A law enacted under this clause must be reviewed every 5 years.

Fundamental Freedoms

• Section 2 of the Charter explains basic freedoms for all Canadians.
• Fundamental freedoms include freedom of conscience and religion.
• Also, fundamental freedoms include freedom of thought, belief, opinion, and expression.
• Further, fundamental freedoms include freedom of peaceful assembly and freedom of association.

Freedom Of

• Everyone in Canada can practice and follow their religion or faith under freedom of conscience and religion.
• Under the freedom of conscience and religion, no one can be forced to act in a way that violates their religious beliefs.
• Freedom of thought, belief, opinion, expression includes all forms of communication and expression.
• This includes speech, media, and arts.
• Freedom of thought, belief, opinion, and expression may be limited if a person promotes hate or discrimination.

Freedom Of

• Freedom of peaceful assembly is usually associated with the right to participate in peaceful demonstrations.
• Freedom of Association allows individuals to join together in groups.
• Examples include political parties, unions, and clubs.

Democratic and Mobility Rights

• Democratic rights are in Sections 3, 4, and 5 of the Charter.
• Citizens have the right to vote.
• Elections must be held every five years.
• Section 6 are mobility rights in the Charter.
• Citizens have the right to enter and leave Canada.
• Citizens have the right to move between provinces and territories.

Legal Rights

• Sections 7-14 describes legal rights.
• Definition: Charter sections that protect personal and procedural rights in the criminal justice system
• Section 7: Life, Liberty, Security of the Person
• Section 8: Search and Seizure
• Section 9: Detention or Imprisonment
• Section 10: Arrest or Detention
• Section 11: Criminal Proceedings
• Section 12: Treatment or Punishment
• Section 13: Self-Crimination
• Section 14: Right to an Interpreter

Equality Rights

• Section 15 describes equality rights in the Charter.
• Equality Rights are a protection from discrimination.
• Specific grounds for discrimination include race, ethnic origin, color, and religion.
• Also, gender, age, mental or physical disability, and sexual orientation are protected.
• Equal rights for same-sex couples has been a controversial equality issue recently.

Language Rights

• Sections 16-22 of the Charter discusses language rights.
• Definition: Protection of Canada's official languages in all government institutions.
• Canada's official languages are English and French.
• Both languages have equal importance in government matters.
• Canadian laws must be printed in both French and English.

Aboriginal Rights

• Section 25 of the Charter guarantees the existing rights of Aboriginal peoples, such as treaty rights.
• Aboriginal issues are often argued in the courts.
• Common issues include the right to hunt and fish.
• Common issues include land claims.
• Common issues include the desire for self-government.

Enforcing The Charter

• Section 52 of the Constitution Act, 1982, provides remedies if legislation is found unconstitutional.
• There are three remedies:
• Strike down: a court ruling that a law violates one or more Charter rights, therefore it is invalid.
• Read down: a court ruling that a law violates one or more Charter rights, part of it needs changing.
• Read in: a court ruling that a law needs to be changed or amended, but that the law is still constitutional.
• Section 24 of the Charter allows anyone who believes their rights have been infringed to apply to a court for a remedy.
• Infringed means violated or broken.
• Remedy is a method for a person to enforce their rights in court.

Courts and the Legislature

• Governments are elected to pass and change laws.
• Courts can interpret these laws to decide whether they violate the Charter.
• Judicial activism occurs when judges put their views and values into court judgments.