Interpreting the Charter Flashcards
The Charter applies to
government action, NOT private action
The Charter does not apply to matters of parliamentary______
privelege, which are limited powers required to ensure that legislatures may discharge their functions (Chagnon v Syndicat de la fonction publique et parapublique du Quebec)
Section 7 guarantees the rights of
Life, liberty and security of person to all individuals physically present in Canada, despite citizenship or status
Section 2 of the charter protects the rights of:
- freedom of conscience and religion
- freedom of thought, belief, opinion and expression, incl freedom of press and other media communication
- freedom of peaceful assembly
- freedom of association
Section 3 of the Charter protects
the right to vote and stand for election for the House of Commons or a provincial legislature, but NOT to contest municipal or school board elections
Sections 4-5 of the Charter set out the
minimums and frequency for elections, sitting of Parliament and provincial legislatures.
Section 6 of the Charter protects
mobility rights of citizens of Canada, but affords no protection to permanent residents facing deportation.
A person seeking to prove a breach of due process must:
identify a violation of the principle of fundamental justice in accordance with three criteria:
- it must be a legal principle
- there must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate
- it must yield a manageable standard against which to measure the deprivations of life, liberty or security of the person
established in R v Malmo-Levine para 113
R v DB para 46
India v Badesha, the SCC held that
it would violate the principles of fundamental justice to extradite a person to a requesting country if the person would face a substantial risk of turture or mistreatment in that country.
Section 8 of the Charter provides that
everyone has the right to be secure against unreasonable search and seizure
Section 9 of the Charter provides that
everyone has the right not to be arbitrarily detained or imprisoned
Section 10 of the Charter provides for rights on…
arrest or detention, including
- the right to be informed of the reason,
- the right to counsel (which does not include paralegal), and
- the right to challenge the validity of detention through habeas corpus
Section 12 prohibits
cruel and unusual punishment
Section 15 of the Charter guarantees
each individual as equal before and under the law and having the right to the equal protection and equal benefit of the law without discrimination, particularly on the basis of:
- race
- national or ethnic origin
- colour
- religion
- sex
- age or mental or physical disability
The SCC has interpreted s15 to mean that discrimination based on both the enumerated and____
analagous grounds is prohibited.
What is the test set out in R v Sharma, relating to a finding of discrimination under s15(1)?
- the impugned law or state action create a distinction based on enumerated or analogous grounds, on its face or in impact?
- does it impose a burden or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage?
A distinction imposes arbitrary or discriminatory disadvantage where it fails to
respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage
Section 15(2) of the Charter preserves the governement’s ability to
engage in affirmative action programs to ameliorate the disadvantage of groups characterized by a protected ground
Language rights are protected in sections
16-23 of the Charter
internal limits are
language within the Charter that express circumstances where rights may be limited
interpretive limits upon rights occur when
courts interpret limits on the rights
After a limit or infringement of a Charter right is found, that limit may be excused if it
meets the criteria of Section 1, which states that rights set out in the Charter are guaranteed only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
The Oakes Test requires that:
- the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right
- the means chosen to obtain these objectives must be proportional or appropriate to the ends. The proportionality aspect requires that:
- the limiting measures are rationally connected to the objective
- they must impair the right as little as possible
- the effects must not so severely trench on individual or group rights that the legislative objective is outweighed by the abridgement of rights.
Section 33 of the Charter is
the notwithstanding clause, allowing override power of sections 2, 7-15 of the Charter
Remedies for a Charter breach are found under
section 52 of the Constitution Act- changes to law/ of no force and effect
Section 24 of the Charter- individual remedies
Define striking down
the consequene of a law being found to be of no force or effect under section 52 of the COnstitution Act 1982
Define reading down
the removal or ignoring of words found to offend the Charter
define reading in
words are read in by the court to overcome an omission in law
what remedy was used in Vriend v Alberta?
Sexual orientation was read in to the Individual’s Rights Protection Act
using the Charter as an interpretive tool means
when one reading of a statute would result in a Charter infringement but another equally plausible reading would avoid infringement, the interpretation consistent with the Charter is preferred
Severence is
a remedy involving the removal of the offending part of the statute, used where the court determined that it is not appropriate for any reason to read in or read down the statute.
Suspending a declaration of invalidity occurs when
a court determines that some/all of a legislative provision is invalid, and suspends its order for a period of time to permit the legislature to remedy the infringement
an application for relief under section 24(1) can only be made by
a person who’s right has been infringed, although there may be scope for a representative claim where the Charter breach results in the death of the claimant
The remedy of a declaration of breach is used
when under s 24(1), a constitutional litigant’s infringement of CHarter rights occur not by virtue of an impugned law but by virtue of unconstitutional government action carried out within the context of valid laws
The three types of injunctions available under section 24(1) of the Charter are:
- preventative (prohibits action)
- mandatory (requires positive steps be taken)
- structural (combo of mandatory with direct/indirect judicial supervision
Damages may be awarded in Charter cases where
the purposes for damages are met, namely:
- compensation
- vindication of rights
- deterrence
Damages are not available for
state action arising from the operation of a law that is subsequently found to be unconstitutional, unless the conduct was “clearly wrong, in bad faith or an abuse of power”
Subsection 24(2) provides for
the exclusion of evidence in criminal cases where its admission would bring the administration of justice into disrepute
R v Grant, the SCC identified three inquiries to be conducted by the court if Section 24(2) is raised:
- the seriousness of the Charter infringing state conduct
- the impact of the breach on the Charter protected interest of the accused
- society’s interest in the adjudication of the case on its merits.
