LAW 2

Question 1

The Canadian constitution and the charter

Answer 1

The constitution sets out the fundamental nights and freedoms enjoyed by all persons in Canada in a special section called the Canadian Charter of Rightsand freedoms.

The Charter is enshrined in the constitution with the passage of the constution Act 1982.

It governs the relationship between indrurduals and the government, so the gov cant enact policies thatinfringe our rights and freedoms.

Issues dealing with rights + freedoms in relationships between individuals is protected by seperate legislation, such as provincial human rights codes.

It restrains gov power.

Question 2

The Canadian bill of rights vs the charter?

Answer 2

before the charter is was possible for rights and freedoms to be taken away by legislation.

we had the Canadian Bill of Bights, but as a statute, it could be ammendedor repealead by parliament.

If a right or freedom was opposed by the gov, they could vote in parliament to have it changed or removed.

By enshrining these rights and freedoms, they cannot simply be repealed by ordinary acts of parliament.

Question 3

S.2-Fundamental freedoms

Answer 3

Essential to the quality of life
Can only be infringed in the most dire of circumstances, or when its exercise threatens the fundemental freedoms of others
2 (a) - freedom of conscience andreligion
2(b) - Freedom of thaught, belief, opinion and expression
2 (c) - freedom of peaceful assembly
2d) - freedamn of association

Question 4

S.3-5 Democratic rights

Answer 4

Concerns Canadian political process and exercise for democracy

S(3)- the right for citizens to vote and run for government office

S(4) - The guarantee that no legislative body or house of commons will be in Power for more than 5 years without a democratic election, except in very limited circumstances

S(5) : the guarantee that parliament and every other legislature will be working for a set period (a “sitting” ) out of every 12 months.

Question 5

S.6 Mobility Rights

Answer 5

-Freedom of Canadian citizens to be and move within Canada. Have the right to:
- Travel in any province or territory
-work in any province or territory
•-Enter, remain, and leave Canada.

Travelling and working in Canada also applies to permanent residents.

Question 6

S.7-14 legal rights

Answer 6

protects persons encounters with the justice system
(S.7) to life, liberty and security of the person, and not to be deprived of these except under limiting circumstances.
(S.8) to be secure against unreasonable search or seizure
(S.9) to not be arbitrarily detained or imprisoned
(S.10) To retain and instruct a lawyer to represent them in justice proceedings
(S.11(d)To have a trial within a reason able time period
(S.11(a)To beinnocent until proven guilty.
(S. 12) to not be subjected to any cruel or unusual treatment or punishment.

Question 7

S.15 equality rights

Answer 7

Individuals cant be discriminated by gov based off of relating to certain social identity groups

-groups are induded in enumerated grounds andanalagous grounds

• Enumerated grounds : Indudes race, national andethnicorigin, colour, religion, sex , age, and mental or physical disability;
• Analogous grounds: includes sexual orientation, marital status , cItizenship and aboriginality residence.

Question 8

S.16-22 Official languages

Answer 8

-guarantees the use of both English and French in federal gov institutions and sets out special provisions relating to the use of both official languages in New Brunswick, Canadas only official bilingual province.

Question 9

S.23 minority language education rights

Answer 9

right for speakers of either official language to have their children to receive primary and secondary instruction in that language, even if they are the linguistic minority in their community. Wherever a linguistic minority (official) community comprises a large partion of students, the community has the right to have that education paid for by public funds.

Question 10

Ss.24 and 52- enforcement of the guaranteed rights and freedoms

Answer 10

S.24 allows parties to bring forward a claim to the courts when they feel their rights are being violated.

S.52 states the constitution is the supreme law of the land, meaning that any laws in consistant with the provisions of the constitution, of are no force or effect.

Question 11

Application of the charter

Answer 11

Section 32 of the charter states that the charter applies to only gov action and:

Governmental actors - this includes entities controlled by the government and those that exercise governmental functions (e.g. police and post offices)

Governmental acts - this includes entities implementing government programs and those exercising statutory powers (e.g. law societies, provincial human rights commissions). The Charter also applies to governmental inaction wherein a government is required to
ret and fails to do so. (Saskatchewan college of physicians can decide who can become doctors)

Legislation - the Charter applies to all laws and regulations including federal and provincial statutes, municipal bylaws and other delegated legislation that is authorized by law (e.g. rules of professional conduct).

Question 12

Charter of Rights and Freedoms (slideshow)

Answer 12

Embedded in our constitution, and protects the rights of citizens and they relate to the government.

Hill laws passed by the government must be consistant with the rights outlined in the doc.

-All rights are interpreted and enforced by the doc, they have the power to declare democratically passed laws as unconstitutional and of no force and
effect.

Question 13

Limitations section 1

Answer 13

Rights enshrined in the charter arent absolute.
The CORAF guarantees the rights and freedoms set out in it subject to only such reasonable limits prescribed by laws as can be demonstrably justified in a free and democratic society.

-If a court finds a legislation infringes acharter protected right, it must carry out an analysis to determine whether that infringement is justifiable -> oakes test

The question: is the infringement a reasonable limit prescribed by laws that is demonstrably justified in a free and Democratic society.

If the Infringement is a reasonable limit: legislation/conduct is “saved” under
S.1.

Gov has the burden of proof to show that the violation is justified.

If they can’t prove it’s justified under S.1 the courts will strike it down.

Question 14

Notwithstanding clause s.33

Answer 14

Allows parliament to override some charter protected rights (only under S.2 and ss. 7-15)

Gives provinces and the parliament the ability to pass laws that conflict with particular charter -protected rights and freedoms

Must declare it overrides the charter and renew this declaration at least once every 5 years

Has only been relied upon on three occassions since the charter was enacted in 1982:
1) Land Planning and Development Act
(2) 1988 Sask brought striking workers back tuwork
3) Alberta 2000 - ammend Marriage act to limit the definition of marriage to opposite-sex couples

Question 15

Oakes test s.1

Answer 15

S.1 analysis applied when a laws found by the supreme court, to violate the
Charter

-onus is on the govemment to prove that the infringement is justified
-This framewark is called the Oakes Test

-we only use this test if the supreme court has already found a law or policy is unconstitutional

Question 16

The Analysis questions

Answer 16

1) Is the infringement prescribedly law
2) Is the purpose of the law pressing and substantial
(3) Is the law rationally connected to its purpose
4) Does the law minimally impair the infringed right
5) Do the postives outweigh the negatives

To be justifiable, has to be yes to all questions. If there are any no’s, the law is unjustifiable.

Question 17

Limits prescribed by law?

Answer 17

> the Limitation Must be legal, a part of the law, a statute, or a regulation, inorder for the Oakes test to be initiated.
supreme court needs to look at some sort of regulation
(ie) a regulatin for obtaining a drivers license in canada

Question 18

Pressing and substantial evidence

Answer 18

-ls the law important to society? does it have a significant meaning or impact?
-The objective of the law is in question

Goal? reduce deaths

Question 19

Rational Connection

Answer 19

Does the limitation of the law make sense, and connect to what the government wants to accomplish
ie) you want prevent drunk driving so you make it illegal for only men to purchase alcohol

Does this lead to less deaths / achieve goal

Question 20

Minimal impairment?

Answer 20

Does the law impair our rights as minimally as possible? Could other, less damaging, laws be passed instead?
Is there less invasive tools in the tool belt ?
ie) Canada wants to have fewer labour disruptions (strikes), so the gov bans unions, but this infringes our rights to organize
We could use alternatives that dont limit rights

Question 21

Propitiate effect

Answer 21

Do the benefits of the law, outweigh the negative impacts on our rights.
Ie) in Canada, there are laws against newspapers posting false, or fake information for the purpose of demeaning someone.
Benefit > cost ?

Question 22

Remedies?

Answer 22

When it is found that a limitation an our rights is not justified, the supreme court has 4 choices.

1) Striking Down: Caurt can declare a law null and void

2) Partial invalidity: court can remove part of the law, so it might comply w/ the charter.

3) Reading (narrow) Dawn: court interprets the legislation more narrowly (ie. What’s considered hatespeech)

4) Reading in: is used when a law is under inclusive, and needs to extend protection to others. (Ie: laws that protect only certain religions, genders, minorities)

could also use a one -time exemption

Question 23

How do human rights complaints differ from charter challenges?

Answer 23

1)what rights are protected?
2) Where are these rights protected
3) How can I make a claim? How does that work

Question 24

What does human rights legislation cover?

Answer 24

• Human rights are protected
1) Provincially -> Sask human righis code
2) federally -> Canadian human rights act

Question 25

Primacy?

Answer 25

-human rights legislation protects interactions between people , not gov

• Under the sask human rights code, you have the right to dignity and equality.

Because human rights are so important, the code takes precedence over provincial laws-> primacy

Question 26

Sask human rights commission job

Answer 26

Protect
Discourage
Investigate
Discrimination

Question 27

Discrimination?

Answer 27

•Prejudice ->dont like a group due to a preconceived notion- inactionable by courts
• Prejudicial action = discrimination

Question 28

How am I protected?

Answer 28

It is against the law to be discriminated for:
religion
creed
Marital status
family status
Gender
Disability
age (18+)
colour
ancestry
nationality
place of origin
Race or preceivedrace
receipt of public assistance

Question 29

Where am I protected?

Answer 29

place of work
housing
education
public services (hotels, restaurants)
unions
Signs, notices, advertisement for public display

Question 30

May discriminate in?

Answer 30

Religious institutions
Female only gyms

Question 31

Reasonable accommodation questions?

Answer 31

1)not cause undue financial hardship or duress
2)not deprive others of their rights (safety and security of a person)
3) doesn’t interfere with the primary objective/purpose of the business or program

Question 32

How are human rights different from charter rights?

Answer 32

The charter governs the relationship between individuals and the government. It applied to government acts, actors, and legislation. Human rights protects interaction between people, not government.

Charter rights are found in the charter which is enshrined in the constitution, while the human rights are protected federally and provincial through the sask human rights code and the Canada human right act which is a law.

The charter is harder to change as it is enshrined in the constitution while the others are codes and acts.

Charter rights are adjudicated by the Supreme Court contrary to human rights and the human rights commission.

Question 33

In what set of laws could our human rights be found in Saskatchewan?

Answer 33

Saskatchewan human rights code

Question 34

Compaintant vs respondent

Answer 34

Complainant: person making a human rights complaint

Respondent: person accused in or responding to the complaint