Chapter 3 - Personal Rights Flashcards
Is democracy perfect?
NO!
- challenges arise when comparing societal objectives with personal rights
- in any issue, there will be a majority & a minority
- the Canadian Charter aims to balance and protect individual rights in the pursuit of societal objectives.
The Canadian Constitution of Rights and Freedom
Has entrenched rights, meaning they can be changed, but only through the 7/50 formula.
- prior to the charter, canada was founded under parliamentary supremacy, reinfornced by not including the BNA act
- A charter of rights was then introduced in 1982 which entrenched the basic rights
How can the Canadian constitution be changed?
Through the 7/50 rule. 7 provinces must agree to it & those 7 provinces must represent 50% of the canadian population.
A law of statute can be changed by simple majority.
How is the charter in the Canadian constitution applied?
S.32(1) All governments must respect the charter and cannot pass laws that go against it including
- all gov.
- any gov. ran organization or association
The charter is not applicable to private individuals. Private companies can discriminate. An individual can only argue the charter if they’ve been wronged by the government.
What are the protected rights in the Canadian Constitution?
- Fundamental Freedoms
- Democratic rights
- Mobility rights
- Legal rights
- Equality Rights
- Official languages
- Minority Language educational rights
What are the Canadian fundamental freedoms?
- freedom to religion
- freedom of thought
- freedom of expression
- freedom of association
- freedom of press & media
What are Democratic rights?
The right to vote & run for office!
- Every citizen must be allowed to play a meaningful role during elections
- Electorial distrinct that are too large compared to other smaller districts can be challenged as dimishing their representation
Mobility Rights
Right to move, travel and work anywhere in Canada, and the right to leave Canada
Legal Rights
Right to life, liberty & security. (does not include assisted death)
- A person that is arrested has the right to be presumed innocent until proven guilty. the right to a lawyer & the be informed of their reason of arrest.
Canadian Equality Rights
Right to be protected from discrimination
- Equality rights are NOT exhaustive
- Affirmative action is legal! Companies putting up plans to address inequality (reverse racism)
Official Languages
All federal givernment establishements must speak English and French
Minority Language Education Rights
Right for children to be educated in either english or french based on parent’s mother toungue or based on the language in which parents were educated with in Canada.
Limitations to the Canadian Constitution
S. 33 & S.1 allow the government to place limits on these rights.
S.33 - NOTWITHSTANDING CLAUSE: government can pass a law that limits our constitutional rights without the court striking it down.
- must be in S2 or S7-15
- sunset clause: must be renewed every 5 years
S.1 - OAKES TEST: Can be used to limit any charter right if you can explain why a statute should be maintained for societal objectives. EX: Reverse Onus
- The objective of the limit has string societal importance
- The means chosen is the least intrusive & is resonable
The Quebec Charter of Human Rights & Freedoms: Quebec Charter vs Canadian Charter
1) The Quebec charter (1975) applies to both the government AND individuals unlike Canadian charter
2) The Quebec charter is like any other law and is not entrenched - can be changed much more easily
What are the general Quebec charter protected rights?
- Fundamental Freedoms
- Right to equality
Quebec’s fundamental freedoms:
- life & security (right to not be tortured)
- right to assistance ( you must help others)
- freedom of expression, opinion, religion, association
- safeguard of dignity (respect) & privacy
What are the requirements to take a pic?
To take someone’s picture, you must follow 1 of 3 conditions:
1) you obtain permission
2) its a newsworthy event (protest, festival, st pattys parade)
3) If the person is a public figure, but you must be respectful
Quebec’s Equality Rights:
This is an EXHAUSTIVE list:
- race & colour
- sex & sexual orientation
- pregnancy
- civil status
- age (expet where required by law i.e. bars)
- religion & political conviction
- language
- ethic origin
- social condition & handicaps
Quebec’s Dicriminatory Can’ts:
1) Discriminatory clauses in contracts are vois
2) Can’t deny access in public place unless undue hardship
- security risk
- economic risk
3) Can’t have obligatory discrimination interview questions unless it pertains to:
- Aptitude and qualification related (18+ at bars)
- Part of a affirmitive action plan
Quebec’s Dicriminatory Can’ts CNT’d:
4) Cant discriminate against job applicants with criminal records if
- its not job related
- they’ve received pardon
- they can however ask if you have a criminal record
5) You must have equal pay for equal worth if
- Based on aptitude and qualification
- Based on pay equity Plans
Quebec’s Discriminatory Cans:
1) Insurance can discriminate based on profilings
2) Organizations can discriminate if its
- solely based on qualifications
- based on religion groups or NGO communities (greek example)
How can we enforce our rights and feedoms?
1) INJUNCTIONS - court order forcing defendant to stop violating rights
2) MATERIAL DAMAGES - Compensate for a loss of money
3) MORAL DAMAGES - Monetary if someone causes distress through a toxic environment.
4) PUNITIVE DAMAGES - punishement to teach a lesson and make an example, must follow 3 condistion
- Has to be a Quebec charter violation
- Has to have been intentional
- Cannot possess a criminal record for this same act.
What are the limits to the Quebec Charter
s9.1 allows the government to limit our charter rights through sectiosn 1-9 but must meet the Oakes test requirements.
