Charter of Rights and Freedoms Flashcards
what is the reasonable limits clause?
a DISCLAIMER (ALLEVIATES RESPONSABILITY or BURDEN), means rights and freedoms are NOT ABSOLUTE (may be limited under certain circumstances)
what does section 1 allow the government to do?
pass laws that may INFRINGE a Charter right, but in a way that WORKS FOR SOCIETY as a WHOLE
what does “prescribed by law” mean?
ITEM LIMITING a right or freedom must be WRITTEN in either LEGISLATION or REGULATION or COMMON LAW (Canadian law must support the limitation)
what does “demonstrably justified” mean?
the state must PROVIDE GOOD CAUSE or REASON for violating a charter right in the FORM OF EVIDENCE or EXAMPLES (not just ‘because i said so’). SAFEGUARD to prevent governments from demanding things
why is the R. v. Oakes case significant?
it is a LANDMARK PRECEDENT SETTING CASE
what is the Oakes Test?
TEST developed by courts to DETERMINE when there is enough LEGISLATION or EVIDENCE to JUSTIFY LIMITING rights or freedoms.
what does the Oakes Test represent?
a BALANCE of PROBABILITIES between the needs of an INDIVIDUAL and those of SOCIETY
when is the Oakes Test used?
when a CHARTER INFRINGEMENT is ARGUED in COURT
who is the burden of proof on in relation to the Oakes Test?
COMPLAINANT/ APPELLANT to show that a right was wrongfully limited. the state must also show that the infringement is justified
what is the Golden Thread Principle?
PRESUMPTION of INNOCENCE: INNOCENT UNTIL PROVEN GUILTY
where does the burden of proof/ onus come from?
the GOLDEN THREAD PRINCIPLE
what does a law have to have to pass the section one test (reasonable limitation)?
SUFFICIENT IMPORTANCE and PROPORTIONALITY
what is sufficient importance?
have an OBJECTIVE IMPORTANT ENOUGH to JUSTIFY overriding a constitutionally protected right or freedom, must be RELEVANT/ SIGNIFICANT ENOUGH
what is proportionality?
use means that REASONABLY CORRESPOND to the goal (acts in proportional response-weigh needs of individual vs. society). ex. you are a minute late: told not to be late again vs. told you will fail
how do you know if something is proportional?
means must be RATIONALLY CONNECTED to the objective, measures should IMPAIR RIGHTS AS LITTLE AS POSSIBLE (minimal impact), and DETRIMENTS v BENEFITS (cons should not outweigh pros)
why was the charter necessary (rather than the Bill of Rights)?
Bill of Rights was INADEQUATE, a FEDERAL STATUTE (law) and not a CONSTITUTIONAL DOCUMENT (no real impact on PROVINCIAL law). Canadians lacked CONSTITUTIONALLY PROTECTED RIGHTS
why was the Constitution Act of 1982 created?
INADEQUACIES of the Bill of Rights MOTIVATED the GOVERNMENT to provide a COMPREHENSIVE SET of RIGHTS. the Constitution Act was an effort to REPATRIATE the constitution of Canada
what did the Constitution Act do?
made the Constitution of Canada NO LONGER SUBJECT TO BRITISH LAW, ESTABLISHED the CCRF, ESTABLISHED RULES for AMENDING the constitution
what does repatriate mean?
to RETURN or RESTORE to a state of ALLEGIANCE or CITIZENSHIP (new contract between the people an the nation)
what is the CCRF?
like a ‘CONTRACT’ between the PEOPLE of the nation and the GOVERNMENT. OUTLINES TERMS in which the people SUBMIT TO, in turn RECEIVING RIGHTS and FREEDOMS (guaranteed by the government)
what is the ‘introduction’ to the Charter called?
the PREABMLE
what is the problem with the preamble of the Charter?
MONOTHEISTIC approach (there is one, Christian God), reinforces God’s SUPREMACY
what is special about section 2 of the Charter?
ONLY section that MENTIONS FREEDOMS
why is hate speech a reasonable limit of freedom of expression?
hate speech lays the groundwork for later, BROAD ATTACKS, can range from DISCRIMINATION to SEGREGATION to GENOCIDE (Saskatchewan Human Rights Commission v. Whatcott)
what are the 4 fundamental freedoms?
CONSCIENCE and RELIGION
THOUGHT, BELIEF, OPINION and EXPRESSION (including freedom of PRESS and other MEDIA)
PEACEFUL ASSEMBLY
ASSOCIATION
what is sections 3-5 of the CRF?
DEMOCRATIC RIGHTS. to VOTE, government lasts up to 5 YEARS, sitting legislature ONCE A YEAR
what is section 6 of the CRF?
MOBILITY (enter, remain, and leave)
what is section 7 of the CRF?
right to LIFE, LIBERTY, and SECURITY OF THE PERSON (not deprived unless in accordance with principles of fundamental justice)
what is sections 7-14 of the CRF?
LEGAL rights
what is section 8 of the CRF?
secure against UNREASONABLE SEARCH and SEIZURE
what is section 9 of the CRF?
not be ARBITRARILY DETAINED or IMPRISONED
what is section 10 of the CRF?
upon arrest to be INFORMED promptly of the reason, RETAIN and INSTRUCT COUNSEL without delay, and have the VALIDITY of the DETENTION DETERMINED by way of HABEAS CORPUS
what is section 12?
CRUEL and UNUSUAL TREATMENT or PUNISHMENT
what is section 13?
SELF-CRIMINATION (while testifying)
what is section 15?
EQUALITY rights-PROTECTION and BENEFIT (and amelioration of conditions)
what is section 33?
NOTWITHSTANDING CLAUSE
