Canadian Charter of Rights and Freedoms - PDF

The canadian charter of rights and freedoms A constitutional document that Defines the rights and freedoms of canadians and establishes the limits of such freedoms was proclaimed as an entrenched component of the canadian constitution in the constitution act of 1982 Rights vs freedoms Right always w...

The canadian charter of rights and freedoms A constitutional document that Defines the rights and freedoms of canadians and establishes the limits of such freedoms was proclaimed as an entrenched component of the canadian constitution in the constitution act of 1982 Rights vs freedoms Right always wins against a freedom Right: an entitlement that is guaranteed to us by the government (e.g.) it can not be taken away Freedom on the other hand is a privilege that been given to us but can be limited if our freedoms interfere with someone else’s rights or freedoms Cont. Categories of rights and freedoms Fundamental freedoms Freedom of conscience and religion Freedom of belief and expression Associatio Peaceful assembly The provinces feared that these were too broad and as a result they were limited by the notwithstanding clause of section 33 of the charter or section 1, the reasonable limits clause i n the early 90s, immigrant came into canada, they came from a small african tribe, in the middle of congo, they said they were practicing their religion where they believe in female circumcision, they were performed with people who are nit medical doctors, canada says they don’t stand with it, the refugees claim this is freedom of religion, supreme court of canada denied they religion and said that this is harmful to women, the african people could practice their religion but with some restriction. The german writer who wrote about the holocaust, an immigrant from germany and not a citizen, freedom of expression came into his mind and wrote that the holocaust did not happen, he published it, people who found it said it was it bad for jewish people, supreme court of canada denied, denied his freedom of expression , he went back to germany and got sentenced to 5 years in jail. Reasonable limits Your rights and freedoms are protected under the charter, however, as outlined in s.1, limit may be placed on a freedom if it happens to conflict with important societal needs This section of the charter subjects rights and freedom to limits, so long as the limits can be shown to be reasonable an justified in a free and democratic society  Reasonable limits clause How does the court determine if a limit is reasonable ? It applies the proportionality test ( sometimes called the “oakes test) The following criteria must be met Is the goal important enough Does the restriction help achieve this goal? Is this limitation the least restrictive wat to achieve the goal? Is the benefit of the limitation proportionate to the harm cause by restricting the right? On exam and test Case example freedom convoy In 2022, the freedom convoy protests and the government’s response can be seen as an example the reasonable limits clause being used During the protests, the federal government invoked the emergencies act which restricted certain freedoms (like mobility, assembly, or free expression) using the reasonable limits clause, section 1 of the charter Is the goal important enough yes Does the restriction help achieve this goal? yuh Is this limitation the least restrictive way to achieve the goal? yuh Is the benefit of the limitation proportionate to the harm cause by restricting the right? Nah Notwithstanding This section of the charter allows governments to pass ;aw which may interfere with Fundamental freedoms Legal rights Equality rights This action is only valid for five years after which it must be reaffirmed It is also known as the OVERRIDE CLAUSE Bill21: known as laicity act. Quebec invoked the clause to protect the from challenges under sections of the charter that protect fundamental rights, including freedom of religion. Prohibits certain public sector workers from wearing religious symbols while on duty, it restricts religious expressions. Research Was the government justified in limiting this fundamental freedims? First explain how this bill was justified by the government. Useproofs in your answer. Religious symbol Noreligious symbol This affects people who do wear religious symbols, it goes against freedom of relgion RIGHTS Democratic rights (ss. 3-5) The right to vote or run for the office Federal elections are to be called once every five years (max) Mobility Rights (ss.7-14) The right to leave, stay or return to canada The right to move anywhere in canada to live and work Provinces cannot limit the right of non residents town property Legal rights (ss. 7-14) S.7 “the life to right liberty and the security of the person” The limits the power of government to detain or to deny people basic liberty exception “in accordance with principles of fundamental justice” Ex’.abortion in canad does not violate s.7 (“life”)- why? Under Canadian law, life begins once the fetus is living outside the womb and/or able to breathe on its own. MAID law The medical assistance in dying law came into effect in 2016 allowing people deemed eligible to receive medical assistance to die Carter v canada understanding Limited right to life was the argument Arguments for medical assistance death has occurred before but has been declined Legal rights S.8 =to be free from unreasonable searches and seizure Only under the most exceptional circumstances is a man’s home or person to be searched by the authorities Police must obtain a search warrant unless the are placed under arrest. After they are under arrest Their home can be searched A strip may be conducted by an officer of the same gender Warrantless searches can also take place under certain federal or provincial statues - Controlled drug an substances act - Food and drug act - custom s act - Liquor control act Search of luggage coming through customs, search of narcotics on a person. R v Marakah A key canadian case on cell phone privacy In this case, the supreme court of canada ruled that individuals can expect privacy over text messages, even after they are sent to another person’s phone This means that, under section 8 of the charter, police need a warrant to search and access text messages on cell phones, whether they belong to another peson Legal Rights S.9 S.9 no person can be arbitrarily detained detained or imprisoned Authorities cannot take a person into custody on mere suspicion Police need to prove reasonable cause Legal rights S.10 S.10- rights of the arrested citizen Arrest: depriving a person of their liberty There are five components to proper arrest procedure 1. Officer identifies him/hmself 2. The person is informed thst they are under arrest 3. The person is informed of their right to legal counsel without delay 4. The officer touches the accused to signify that the person is in custody 5. The person is informed of there charge Arrest hast to be in person, cannot be over the phone The arresting officer does not have to physical overtake the accused in order to make the arrest. The touch is symbolic Every person appearing before the court has a right to legal counsel there is no one phone call rule in canada. We are given a reasonable opportunity to contact legal counsel  The canadian legal system makes every effort o have quality legal counsel available for every canadian - Duty counsel: there is a lawyer present in the ocj everyday to provide legal services for those in immediate need - Legal aid a service provided by the government for those who can not afford a lawyer. S.11 = ton be presumed innocent until proven guilty The burden of proof is on the crown who must prove guilt beyond a reasonable doubt Reverse onus: some offenses appear to put the onus on the accused to prove he/she did not commit the offense Crime Possession of 5 kilos of cocaine Break and entry Trespassing at night Burden of proof It was personal use Possession of burglary tools was unrelated to crime No illegal intent for being outside a dwelling at 3am. Every crime has intent - Actus reus: the legal act - Mens rea: the guilty minded or wrongful intent If either of these is absent at the time of the offense, then the crime has not been committed In a reverse onus case, the crown must prove the actus reus. 11(e)=right to bail Not to be denied reasonable bail without cause a.k.a = pre trial liberty 8 the practice of releasing an accused person prior to trail A fundadamental principle to canadian law i the belief that an accused person is innocent until prooven guilty. A judge can deny baile if her/ she feel - The accuse will commit another offense - The accuse will harass the witness or tamper with evidence - The accused will fail to appear - If it is within the best interest of the ppublic that the accused is held in custody There are 3 types of pretrial releases 1. The accused promise to appear= recognisance 2. The accused puts a sum of $$$ to ensure they will appear for trial. The $$$ is returned if the accused appears in court 3. Surety : a person related to the accused puts up their property or $$$ and takes responsibility for the accused Legal rights s.12 S.12 not to be subjected to cruel and unusual punishment or treatment Capital punishment (death penalty) Was removed from the criminal code of canada (ccofc) in 1976 even though the supreme court ruled it was not cruel and unususal Canadas last state execution occurred in 1962 Corporal punishment Physical correction (flopping or whipping) Removed from ccofc in 1972 Placing inmates in solitary confinement for extended periods might be considered cruel and unusual Dangerous offenders A person who poses a threat to the life, safety, physical or mental well being of others Ex. paula bernardo * sentence to indetermined sentences (with no termination date) Can apple for periodice parole Witness protection (s.13) Evidence given by a witness cannot be used against that witness in another case. Ex. drug dealer witnesses a murder - admission of drug dealing in the murder trial cannot be used as evidence against him in his drug trafficking trial Equalit rights(s.15) You have legal equality regardless of race, national ethnic origin, color, religion, sex, age, mental or physical disability Employment equity programs do allow special treatment for those who are disadvantaged. - Enforces increasing the represnetation of women, aboriginal persons with disabilities and visible minorities in the federal public sector Aboriginal rights Guarantees that no rights protected under the charle will be used to abrogate or derogate form aboriginal rights - The royal proclamation (1763) - Treaty rights and land claim agreements Abrogate- to abolish or anul Derogate- to take away or detract