Constitutional Law and Canadian Charter of Rights and Freedoms Flashcards
Entrenchment
(of an attitude, habit, or belief) firmly established and difficult or unlikely to change; ingrained
Entrenched
Mr. Trudeau wanted an entrenched Charter of Rights and Freedoms, meant it was to be an integral part of the constitution. The provinces objected to this as they feared loss of power as a result of judicial interpretation of an entrenched Charter
What existed prior to the charter?
Statutes such as ; The Canadian Bill of Rights 1960, The Official Languages Act 1969, Provincial Bills of Rights
These laws could be changed either by Parliament or provincial legislatures. They were not entrenched in the constitution
The Amending Formula
It was necessary to have an effective way by which the constitution could be changed
Both the provinces and the central government wanted to ensure that the wording of the amending formula protected their respective interests
Seven of the ten provinces of Canada representing at least 50% of the population and the Canadian Parliament must agree to most changes
Changes to the monarchy, composition of the Supreme Court of Canada or language law require all ten provinces and the federal government to agree
The formula has proven difficult to apply
The agreement of seven provinces representing 50% of the population on any issue, let alone ten, is difficult to obtain
Provinces may ‘opt out’ of constitutional amendments that may diminish their power
Compromise
Agreement was finally reached between the central government and nine of the ten provinces in November of 1981. Only Quebec refused to be a party to this agreement. On April 17, 1982, Royal Assent was given by the Queen to the Canada Act 1982
The Canada Act 1982
2 major components:
The Constitution Act 1867-This was the old British North America Act 1867
The Constitution Act 1982 - This was new and contained several important components
The Charter of Rights and Freedoms
An entrenched Charter which could not be changed other than by constitutional amendment was included in the constitution
Provinces were allowed the notwithstanding clause which provided exemption from some provisions of the Charter
The Meech Lake Accord 1987
This was an effort to to bring Quebec into the constitution and included the following:
1. “Distinct society” status was to be confirmed for Quebec
2. Provinces were to be given the right to nominate judges for the Supreme Court. The accord was not ratified by all ten provinces and failed
The Charlottetown Accord
This was a major constitutional amendment package which included
1. “Distinct society” status for Quebec
2. Aboriginal self-government
3. Senate reform
It failed to pass a national referendum in October 1992
What is a Charter?
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
The Guarantee of Rights and Freedoms
This is the “common sense” clause which allows governments to limit freedoms if it is reasonable
The courts must decide what is reasonable
Fundamental Freedoms (s. 2)
Freedom of conscience and religion
Freedom of belief and expression
Freedom of association
Freedom of 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
Democratic Rights (s. 3-5)
The right to vote
The right to run for elected office
Elections are to be called once every five years
Parliament and legislatures must sit once in every 12 months
Mobility Rights
The right to leave and to return to Canada
The right to move anywhere in Canada to live and work
Reasonable residency is required for access to social services and permanent residents in need could be given assistance first
Provinces cannot limit the right of non residents to own property
Legal Rights (ss. 7-14)
This limits the power of government to detain or to deny people basic liberty except “in accordance with principles of fundamental justice
Legal rights can be limited by the “notwithstanding” clause of section 33.
Legal Rights
Arbitrary arrest is not allowed
Police cannot unreasonable search any person
You must be informed of the reason for your arrest
You must be informed of your right to retain a lawyer
You must be informed of your offense
You must be tried in a reasonable time
You are presumed innocent until found guilty by the courts
You cannot be denied reasonable bail
You cannot be forced to give evidence against yourself
Equality Rights (s.15)
You have leal equality regardless of race, national or ethnic origin, colour, religion, sex, age, mental or physical disability
Affirmative action programs do allow special treatment for those who are disadvantaged. These rights may be limited by the “notwithstanding” provisions sections 33
Language Rights (ss.16-22)
The bilingual status of Canada is recognized
The equality of french and English in Parliament is confirmed
Federal agencies must provide services in both French and English
Either language can be used in federal courts
Native people can still use their languages in court
Minority Language Rights (s. 23)
These apply only to Canadian citizens and not new immigrants
English or French speaking minorities can have their children educated in their own language, It must be the parents first language
Provinces need only provide minority language schools where there are sufficient numbers to justify the cost
Enforcement of the Charter
An individual may apply to the courts to stop any activity they believe to be discriminatory
Courts may challenge laws that take away basic individual rights and freedoms
The Charter takes power away from the Parliament and provincial legislatures and gives it to the courts
“Notwithstanding” (s. 33)
This section of the Charter allows the government to pass laws which may interfere with:
Fundamental freedoms
Legal rights
Equality rights
This action is only valid for five years after which it must be reaffirmed
The Charter and Canadian Society
Since 1982 the courts have applied the Charter to many aspects of Canadian life
All levels of government had to ensure that their laws did not violate the Charter
The wording of many parts of the Charter continues to be open to interpretation
Part of the Charter have been found to be in conflict with each other requiring judges to balance one right against another
