Canadian Charter of Rights and Freedoms Notes

Canadian Charter of Rights and Freedoms (CCRF) - Embedded into the Constitution Act of 1982 - Bc it is part of the Constitution, it is considered to be the highest legal authority - Goal: provide all people with guaranteed rights and freedoms - To protect us from the government/law...

Canadian Charter of Rights and Freedoms (CCRF) - Embedded into the Constitution Act of 1982 - Bc it is part of the Constitution, it is considered to be the highest legal authority - Goal: provide all people with guaranteed rights and freedoms - To protect us from the government/laws that may try to violate/limit your rights Examples of rights/freedoms: - Right to mobility (Leaving, travelling and entering the country) - Right to vote - Freedom of expression - Right to a lawyer (when arrested right to one) Right Freedom Right to… Freedom from… - ie. vote - ie. cruel & unusual punishment Section 1: Reasonable limits clause - All rights in the constitution are subject to reasonable limitations - There are some times where someone’s rights need to be taken away - Ex. when 2 or more rights come into conflict with one another, one or both of those rights might need to be limited/restricted 4 criteria for when a rights infringement can be reasonable: 1. The reason for the limit must be important enough to justify limiting rights 2. The way in which the right is violated should be done in a reasonable and logical way/manner 3. The limit of rights should be as minimal as possible 4. ****The important reason for the limit must outweigh the size of the limit**** - ex. A murderer receiving a life sentence (KNOW THIS WELL, WILL BE ON TEST AS A CASE SCENARIO) Section 33: Notwithstanding Clause Allows for rights to be limited (government can nullify a right in a specific way for a 5 year period of time - renewable) - Unlike in section 1, government does not need to have reasonable goal to limit rights - Danger to our rights and freedoms - Applies to sections 2, 7-15 (not democratic or mobility rights) Section 24: Remedies clause Section 24 (1):  - Strike down a law as unconstitutional (get rid of the law bc it is illegal) - Order financial compensation (giving victim $) - Adjust/completely get rid of person’s sentence - Drop charges Section 24 (2): - Exclude evidence obtained in an illegal manner in court - EXCEPTIONS for some circumstances (ie. police finding a dead body in a person’s house after illegally searching their house) Section 2 (a), (b), (c), (d) - our fundamental freedoms Section 2 (a): Freedom of conscience and religion - Freedom to think and believe - Freedom of belief without fear and to express belief through cultural/religious practices - Cannot be forced to act against beliefs - Has some limits (ie. helmet while riding bike, not wearing one as a Sikh because of a head covering) Section 2 (b): Freedom of expression - “I may disagree with what you say but I will defend to the death your right to say it” - Lots of different ways to express yourself - Not many limits to exist but there are some on what and how you say things Section 2 (c): Freedom of peaceful assembly - People have the right to protest peacefully - Raises awareness to different causes and social issues - Important to not limit protesting rights but ensure society is safe Section 2 (d): Freedom of association - People have the right to associate with whoever they want - Workers unions are most important - Ensures workers can protect themselves through unionization without fear of punishment Section 3,4,5 - Democratic Rights Section 3 All citizens have the right to vote Section 4 Elections must be held at least every 5 years Section 5 Parliament must hold parliamentary session at least once a year Section 6 - Mobility Rights All citizens can enter, remain, leave and travel throughout Canada - Ex. limited travel allowed during Covid Section 7 - Right to Life, Liberty and Security Life: Right to stay alive + be protected from threats to your life - Ex. laws or actions that would unjustly lead to death Liberty: Right to be free; making personal choices without government interference - This right includes free choice but also includes privacy since an invasion of privacy would be a violation to them being free - Ex. choosing where you live, your beliefs, body decisions, etc Security: Right to be safe; be free from serious physical or psychological harm - Important to recognize that most laws intend to keep us safe and uphold the moral values of the people but sometimes in an effort to achieve safety or morality we sometimes will hinder the safety of others. This is not allowed! - Ex. depriving someone of shelter or food Section 8 - Right to be secure against unreasonable search or seizure - Search: examination of your person, property, info - Seizure: taking of property or data - Unreasonable: no valid legal reason (no warrant/probable cause) What makes a search reasonable? The search is authorized by the law - Specific law/legal rule gives police officials the right to search - Cannot search “just because they feel like it” - Ex. police can search with a warrant signed by a judge The law itself must be reasonable - Even if a search follows the law, law itself must respect the Charter - Broad law = unlimited power so search has possibility to be unconstitutional - Ex. If a law allowed random police searches of people walking in public, it would likely be struck down Search Is Carried Out in a Reasonable Way - Even if search is legal, how its done matters - Done respectfully, limited searching, avoids humiliation - Ex. police officer searches only what’s listed in the warrant What makes a search unreasonable? The Search Is Not Authorized by Law - person conducting search has no legal authority to do so (no warrant, no arrest, etc) - Ex. police officer stops someone randomly on the street and searches their bags. Search Is Carried Out in an Unfair or Abusive Way  - Even if search is allowed by law, can be unreasonable if it is done in a harsh, aggressive, humiliating, or overly invasive manner - Ex. Searching more than necessary, like ripping apart someone’s entire home looking for something minor Section 9 - Right not to be arbitrarily detained or imprisoned - Protects people from being stopped, held, detained or arrested without a good legal reason - Ensures government cannot use power to control people unfairly - Arbitrarily: without reason, without legal authority, or based on bias or discrimination. What makes a detainment reasonable? The Detention/Arrest Is Authorized by Law - Police must have legal authority under the Criminal Code or another law to detain or arrest someone - Ex. A police officer arrests someone after witnessing them commit an assault Stop Is Not Based on Discrimination or Stereotypes - Reasonable detentions are based on behaviour and evidence — not race, age, clothing, location, or assumptions - Ex. pulling over a person of colour because ‘they are more suspicious’ What makes a detainment unreasonable? The police have no reasonable grounds - A detention or arrest based on a hunch, gut feeling, or vague suspicion is not allowed - Ex. detaining a person because you feel like they are doing something bad Section 10(a) - Right to know why - You must be told, clearly and right away, why you’re being arrested or detained - The officer must explain why you are being pulled over (if they do not, your detention may be unconstitutional) Section 10(b) - Right to a lawyer - You have the right to talk to a lawyer without delay;police must tell you that you have this right - If police question you before you speak to a lawyer, the evidence may be thrown out in court Section 10(c) - Right to challenge the Detention (Habeas Corpus) - If you believe your detainment is unfair/unlawful, you can ask a judge to review your detention - Government must then prove that your detention is legal; if they cannot justify it, the judge can order your release Section 11 - Any person charged with an offence has the right to: a) be informed without unreasonable delay of the specific offence  b) be tried with reasonable time (charges told twice in case changes have been made to them) c) not be compelled to be a witness in proceedings against themselves d) be presumed innocent until proven guilty according to the law e) not to be denied reasonable bail without just cause f) a jury trial if the max punishment is five or more years in prison (exception: military courts) g) not be found guilty for an action/failure to act unless (at the time) it was against the law h) if not guilty, person cannot be tried again for same offence. If guilty and punished, person cannot be tried/punished again for it i) If found guilty and the punishment changes between the crime and sentencing, the lesser punishment applies Section 12 - Right to not be subjected to any cruel and unusual treatment/punishment Government cannot treat you in ways that are extremely harsh, inhuman or degrading - Punishment must be fair and appropriate for crime - Applies to sentences, prison conditions, etc - Ex. throwing someone in jail for 1 year for J-walking Section 13 - Rights of witnesses in court If someone testifies as a witness in court, what they say cannot be used to charge them with a different charge later on - protects people from accidentally saying something that gets them in trouble - only time what they say can be used against them is if they lie Section 14 - Right to an interpreter If someone is involved in a legal case (witness or party) and they don’t understand the language being used, they have the right to an interpreter - also applies to deaf people - goal is to make sure everyone can understand what’s happening and fully participate in their case - makes sure no one is at a disadvantage Section 15 - Equality Every person is equal before and under the law; with equal protection and benefit without discrimination based on race, nationality/ethnicity colour, religion, sex, age or mental/physical disability - right to fair treatment, only basis on the law - sometimes law will give minority groups an extra benefit to improve their equality (not all groups are owed it because some groups already have that form of equality) Difference between Charter and Human rights law  - Charter protects us from the government while human rights protects us from individuals and organizations - Human rights are not dealt with in court; dealt with at a Human Rights Commission OR tribunal - Every province creates their own human rights law - Punishments/remedies exist for both laws Stereotype - generalization about a group of people; taking a fixed idea about one person and applying it to a whole group - ie. all people with glasses are smart Prejudice - when a person holds a belief about a person or group based on characteristics that are based on false representations in stereotypes Discrimination - when prejudice gets put into action (harming a group of people based off a differentiating characteristic) Human rights code All our laws that protect Human Rights are written in the HR Code It states: - All people have human rights that cannot be infringed upon/dismissed - All people have individual dignity and worth - All people are entitled to equal rights and opportunities without discrimination - All people need a climate of understanding and respect Protected social areas are: - Accommodation (housing): renting, buying, etc - Contracts: no discriminatory policies/language within a contract - Employment: employers must not discriminate against employees. Must also ensure that they do not allow for members in workplace to discriminate against each other + policies do not discriminate - Goods, services, facilities: when purchasing or using services and facilities - Membership in unions, trade, professional associations - cannot discriminate Examples of Human Rights legislation: 1. Charter of Rights and Freedoms (constitution, applies to government) 2. Canadian Human Rights Act 3. Ontario Human Rights Code (exists bc it differs province to province) Duty to accommodate - Organizations are responsible for understanding that various people and groups have differences and that the organization is responsible for creating policies and practices that assists all people and groups to meet their various needs - ie. giving an IEP student double time Direct discrimination - involves practice/behaviour that is overt and clearly discriminatory  - Can be series of small events or one significant action that leads to unfair treatment - Ex. refusal to hire someone because of gender, using racist comments against people Harassment: Defined as engaging in a course of vexatious comment/conduct that is known to be unwelcome (does not matter intentional or unintentional) - Sexual harassment: form of discrimination based on sex (human rights code prohibits it in employment, education, housing, etc - Some receives unwelcome sexual attention/comments that might be inappropriate Poisoned environment - occurs if actions or policies create an uncomfy/unwelcoming atmosphere; can also be created for individuals who are not directly affected Systemic discrimination - discrimination that is part of the operating procedures (ie. school, workplace, etc) - Denies an entire group of people their rights/excluding them from participation - Visible or invisible - Ex. no ramps or accommodation washrooms excludes disabled people Constructive discrimination - seemingly neutral requirement has a discriminatory effect - Ex. requirement that all employees must work on Saturdays; can discriminate against those who worship that day as part of their religious practice Bona Fide Occupational Requirement - Qualification that would normally be considered discriminatory but is necessary for proper job performance - An employer may discriminate on the basis of age, sex, record of offences or marital status if these are genuine requirements of the job. - ie. shelter for women with trauma only hires woman counsellors Undue hardship - if person cannot be reasonably accommodated without difficulty, employer may not need to provide accommodation - ie. accommodation poses a substantial health or safety risk to others or themselves Affirmative action - Programs designed to give people from historically disadvantaged backgrounds an advantage to try and level the playing field towards more equal outcomes - Purpose: correct mistakes of the past - ie. lower requirements for entrance to universities Remedies 1. Monetary remedies: money - ex. Compensation for money lost 2. Non-monetary remedies: ordering respondent to ‘do’ something (fixing behaviour) - ex. Job reinstatement, allow applicant to become member after being denied 3. Public interest remedies: ensures future compliance with the code (action that can be taken to prevent discrimination from happening again) - ex. Changing hiring practices, developing new policies, etc Players in human rights cases - Complainant: person making human rights complaint - Respondent: person accused of a human right - Commissioners: Someone who works for the human rights commission who investigates and reports on human rights violations - Human Rights Tribunal: If a decision is needed to determine the outcome of a case, a tribunal of 3 adjudicators will decide the outcome and remedies of a case 15 multiple choice Human rights code scenario (apply law, area of discrimination and type of discrimination,what area of code is this protected by) Charter scenario (tell which right is being denied and explain) Use oakes criteria (well planned essay, communication being marked here) Something abt notwithstanding clause Know all the cases from worksheet