The Canadian Charter of Rights and Freedoms PDF

The Canadian 90 Charter of Rights and Freedoms   Canadian Charter of Rights and Freedoms was entrenched (safeguarded) in the Canadian Constitution on April 17, 1982.  This means that our rights and freedoms are protected...

The Canadian 90 Charter of Rights and Freedoms   Canadian Charter of Rights and Freedoms was entrenched (safeguarded) in the Canadian Constitution on April 17, 1982.  This means that our rights and freedoms are protected by the constitution.  Charter overcame previous limitations of Bill of Rights  Charter applies to every level of government 90 (Municipal, Provincial & Background Federal) Who does the Charter protect us from? The Government (M, P, F, Government Agencies, Government Actors) Who in Canada is protected by the Charter? Everyone (Except democratic and mobility rights) Most rights are not absolute; can be limited but taking away a right must be justified.   Rights and freedoms may be limited by government if the limitation can be justified  Courts usually decide what "reasonable" means on a case by case basis. SECTION 1: 90 Reasonable  E.g. a person's freedom of Limits Clause expression may be limited if they are promoting hate speech.  E.g. a person’s liberty may be limited if they commit a violent crime and receive jail as a punishment  A simple four step guide to analyzing a Charter case *Judges use this process in deciding if a limitation on a right is justified or not Analyzing a 1. Does the Charter apply to the Charter case 90 case? ”Playing 2. Has a right or freedom in the Judge” Charter been infringed upon? 3. Does Section 1 (the reasonable limits clause) justify the infringement? *Oakes Test is applied here 4. If not, is there a remedy provided by the Charter?   This section explains the basic freedoms provided to all people in Canada.  These are fundamental freedoms: Section 2:  Freedom of Conscience and 90 Fundamental Religion Freedoms  Freedom of Thought, Belief, Opinion, and Expression  Freedom of Peaceful Assembly and  Freedom of Association  Conscience and Religion  Everyone in Canada is free to practice and follow their religion or faith.  No one can be forced to act in a way that violates their religious beliefs. Section 2 90 Thought, Belief, Opinion, cont: Expression Freedom of…  Includes all forms of communication and expression (e.g. speech, media, arts)  This freedom may be limited if a person promotes hate or discrimination.  Peaceful Assembly  Usually associated with the right to participate in peaceful demonstrations Section 2 90 cont: Association Freedom of…  Refers to the right of individuals to join together in groups (e.g. political parties, unions, clubs)  Sections 3, 4 & 5 - Democratic Rights  Section 3: Right of citizens to vote  Section 4: House of Commons or Legislative Assembly cannot continue for longer than 5 yrs without an election Section 3, 4 & 5:  Section 5: Parliament and Democratic AND Legislature 90 must sit at least 1 time per year Section 6: Mobility Rights Section 6: Mobility Rights  Right for citizens to enter and leave Canada AND the right to move between provinces and territories   Sections 7–14  Definition: Charter sections that protect personal and procedural rights in the criminal justice system  Section 7: Life, Liberty, Security Sections 7-14: of the Person Legal Rights  Section 8: Search and Seizure OVERVIEW OF  Section 90 9: Detention or LEGAL RIGHTS Imprisonment SECTIONS OF  Section 10: Arrest or Detention CHARTER  Section 11: Criminal Proceedings  Section 12: Treatment or Punishment  Section 13: Self-Crimination  Section 14: Right to an Interpreter  Right to life, liberty and security of the person  Right to Life – the right to live, but also not to live Sections 7: (e.g. Physician Assisted Death) Right to Life,  Right 90 to Liberty – Right to Liberty & be free (e.g. Limited if Security of convicted of a crime) the Person  Right to Security of the person – Right to have control over what happens to your body (e.g. Case of A.C. who received a blood transfusion against her will)  Right not to be UNREASONABLY searched or have anything seized  What makes a search unreasonable? Sections 8:  When should the government 90 (e.g. police) be Search & allowed to search without a Seizure warrant?  If the police found something incriminating (e.g. weapon used in serious crime), but collected it by violating this right, should they be allowed to?   Section 9: Right to not be ARBITRARILY detained or imprisoned  Section 10: Rights on arrest or detention E.g. informed of why you are arrested, access to a lawyer without delay, etc.  Section 11: Criminal Proceedings Sections 9- E.g. tried within reasonable length of time 90(b), be presumed innocent until 14: Legal proven guilty (d), not denied bail Rights unless there is a reason (e), if acquitted of the offence, not to be tried for it again (Double Jeopardy) (h)  Section 12: Right not to be subjected to any cruel or unusual treatment or Punishment  Section 13: Self-Crimination (if one is a witness)  Section 14: Right to an Interpreter   Protection from discrimination  Specific grounds for discrimination include: race, ethnic origin, colour, religion, gender, age, mental or physical disability, and (most recently) sexual orientation. Section 15: 90 Equality *NOTE: This is NOT an Rights exhaustive list E.g. Marriage Laws that disallowed same sex marriage was argued in the courts related to this section of Charter   Protection of Canada's official languages in all government institutions  Canada's two official languages are English and French.  These sections guarantee that both Sections 16- languages have equal importance in 22: 90government matters. Language E.g. Canadian laws and government publications must be printed in both Rights French and English E.g. all services or hearings must be available in both languages   Guarantees the existing rights of Indigenous peoples in Canada (e.g. treaty rights). *Relates to ABORIGINAL LAW Section 25: 90  Aboriginal Aboriginal issues are often Rights argued in the courts. Some of the more common issues:  right to hunt and fish  land claims  desire for self- government   Section 33 of the Charter, also referred to as the "overriding clause" and the "opt-out clause"  This clause allows governments to enact or Section 33: maintain laws notwithstanding 90 in spite of) the fact they Notwithstandi (or ng Clause may violate rights and freedoms in the Charter.  If a government uses this clause, the law they are enacting must be reviewed every 5 years.  Example 1: French Signs in Quebec (Bill 101, 1988)  Law in Quebec states that all street signs must be in French. SC said it violated rights and freedoms.  Quebec later added Charter of French Examples of Language Act, which requires all children to be educated in French until their use of secondary studies if they have 90immigrated to Quebec Notwithstandi Example 2: ng Clause  Saskatchewan’s Parents Bill of Rights Law (Sec 33) which allows parents access to child’s information, including gender identification Example 3:  Quebec’s ban on religious symbols (Bill 21), which bans public officials from wearing religious symbols at work  Section 52 of the Constitution Act, 1982 This section provides the courts and governments with these three remedies if legislation is found to be unconstitutional: 1. Strike down – a court ruling that a law violates one or more Charter rights and therefore is invalid. THE Section 52 of LAW MUST GO! 2. Read down – a court ruling that a law Constitution 90 violates one or more Charter rights Act, 1982: and part of it needs to be changed or Enforcing The amended. PART OF THE LAW MUST GO! Charter 3. Read in – a court ruling that a law needs to be changed or amended, but that the law is still constitutional. THE LAW IS LEGAL/CONSTITUTIONAL BUT IS PROBLEMATIC. PLEASE REWORD IT!  Section 24 of the Charter This section allows anyone who believes their rights have been infringed to apply to a court for a remedy. Section 24: Court decides if a right that Enforcing The government 90 has infringed Charter (trespassed upon), has been cont… infringed upon reasonably REVIEW: Section 1-states Infringed – violated individual rights & freedoms or broken can be restricted for the good Remedy – a method for a person of society, if restriction or to enforce his/her rights in court limitation is REASONABLE  PART 1 – Allows people to take the government to court in order to have the court review the limitation of a right and decide if the limitation is justified 2 PARTS - PART 2 – States that if the 90 SECTION 24 government collected evidence against an individual AND the courts decided that the limitation of the right is NOT justified, the government CANNOT use the evidence they collected while violating the right against the individual  *DAVID OAKES CASE THAT LED TO R. v. Oakes (1986) OAKES TEST THE OAKES TEST:  Supreme Court decided that a law that limits a Charter right or freedom is ‘reasonable’ if it passes: (2 parts) 1. Government objective for violating 90 right must be important the OAKES TEST 2. Proportionality Test a) Must be a rational connection between limitation and goal limitation is trying to achieve b) Must impair rights as little as possible c) The solution must not be worse than the problem (“cure must not be worse than the disease”)  A simple four step guide to analyzing a Charter case *Judges use this process in deciding if a limitation on a right is justified or not REVIEW: 1. Does the Charter apply to the Analyzing a 90 case? Charter case 2. Has a right or freedom in the Charter been infringed upon? 3. Does Section 1 (the reasonable limits clause) justify the infringement? *Oakes Test is applied here 4. If not, is there a remedy provided by the Charter?