Module 3 : The Canadian Charter of Rights and Freedoms Flashcards
Introduction to the Charter…
Primer on the rights
- protection of individual rights & freedoms (like civil rights)
- human rights are… inherent (born w them), universal, interrelated & interdependent & individible (connected)
- the state has an obligation to protect these rights
Introduction to the Charter…
History of human rights
- 1867 = BNA (had common law system of protecting civil liberties)
- 1930s = WWII
- 1948 = UN passed the Universal Declaration of Human Rights
- 1960 = Canadian Bill of Rights (limited cuz it was a federal law)
- 1962 = Ontario passed the human rights code (provincial law)
- 1982 = Patriation of the Constitution Act & the birth of the Charter
Introduction to the Charter…
Charter vs. provincial legislation
- charter… constitutional concept & applies only to the government (not other institutions)
- provincial legislation… quasi-constitutional & wider application
The Charter & what it does
Application of the Charter
- s.32 (1) = this charter applies:
- a) to the Parliament & government of Canada in respect to all matters within the authority of Parliament indlucing all matters relating to the Yukon Territory & Nortwest territories; and
- b) to the legislature & government of each province in respect fo all matters within the authority of the legislature of each province
The Charter & what it does
What the Charter protects…
- fundamental freedoms (e.g. religion, thought, expression, association, etc.)
- democratic rights
- mobility rights
- legal rights
- equality
More!
Interpreting the Charter
Who does the charter protect?
- everyone
- every citizen
- every individual (human)
- but there are limits to this
Interpreting the Charter
Vagueness of the Charter
- like wtf is ‘expression’
- Inherent integrity (means something)
- Originalism… what was written at the time is what is meant to be going forward… this is hard to know for sure
- construction = means of interpretation
- living costitutionalism (tree analogy)
- purposiveness
- not ambiguity
Limits on the Charter - reasonable limit
Reasonable limit (s.1)
- Section 1 ‘guarantees the rights & freedoms set out in it subject only to such reasonable limits prescribed by laws as can be demonstrably’ justified in a free & democratic society
- This allows for the state to put limits on rights as long as they are reasonably justified
Limits on the Charter - reasonable limit
Case: R v. Oakes
- Oakes became the test on how we determine what’s a reasonable limit…
- define right & determine if it has been infringed
- if infringed, determine if infringement is justified
- if it passes the Oakes test, the the infringement is justified and therefore constitutional (is a reasonable limit
- if it fails the Oakes test, the infringement is not justified and therefore unconstitutional (not a reasonable limit)
Limits on the Charter - reasonable limit
The Oakes test
- pressing & substantial objective (asking if the point of the law is important enough to infringe rights)… Proportionality test:
- rational connection (between pressing substantial objective & infringement, like is there acc a need to infringe to reach objective)
- Minimally impairing (where most cases fail… its asking if the infringement is the only way this can be done, is it least drastic means?)
- Proportionate effect (between the benefits of the objective and the impact of infringement, need to be balanced)
The extend of an inconsistency is determined by where the legislation fails the Oakes test…
- Pressing & substantial = failure at first step, you interpret the inconsistency in a broad way
- Rational connection = fails at 2nd step you interpret it more narrowly
- minimally impairing = fails at 3rd step, there is a flexible approach depending on the nature of what is going on
- proportionate effect = flexible
Limits on the Charter - Notwithstanding clause
Notwithstanding clause
- section 33 (1) - Parliament or the legislature of a province may expressly declare in an Act that the Act or a provision thereof shall operate notwithstading a provision included in section 2 or sections 7-15 of this Charter
- section 33 (2) - A declaration made under subsection (1) shall cease to have effect 5 years after it comes into force or on such earlier date as may be specified in the declatation (cuz election every 5 years)
Limits on the Charter - notwithstanding clause
Summary of section 33 notwithstanding clause
- Section 33 allows the government to pass laws that temporarily override certain rights protected by the Charter (enacts otherwise unconstitutional legislation to be constitutional)
- However, this power is not unlimited, and there are time constraints on how long such overrides can be in effect
- The idea is that this provision allows for a balance between protecting individual rights and providing flexibility for the government to address certain issues.
- prospective only
- rarely used (mostly in Quebec)
Enforcing Charter rights
How does a Charter case happen?
- Charter protects individual rights and freedoms, so a case arises when these rights have been violated or infringed
- It has to be an infringement by the STATE
- The government has done something to interfere with the rights & freedoms of someone who is protected
- can arise in ordinary law enforcement
- can challenge law that has been enacted (even if it isnt being enforce necessarily)
Enforcing Charter rights
Parties to a Charter case
- Person making a claim = plaintiff / applicant
- versus = STATE / attorney general / defendent / respondent
- Interveners