Constitutional Law and CCRF Flashcards
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
