SECTION 1-11 and 24 Flashcards
What was the purpose behind the creation of the Charter of Rights and Freedoms?
- To create a just society
- Legally protect the fundamental rights and freedoms of Canadians
- To allow for Canada to gain full control of its constitution
Why didn’t the 1960 Canadian Bill of Rights or British Common Law traditions sufficiently protect Canadian civil and legal rights?
- The Canadian bill of rights was more of a federal statute rather than a constitutional document
- It could easily been amended or overridden by subsequent legislation
It still infringed some of Canadians rights - Did Not completely protect our rights
How did the supremacy of Parliament shift from the Canadian Parliament to the Supreme Court of Canada after 1982?
The Supreme Court became the key authority for making sure laws are fair. It can cancel laws or decisions that go against the Constitution or violate people’s rights. Lawyers take these issues to the Supreme Court, which checks if laws protect Canadians’ rights and freedoms.
What can the Supreme Court of Canada do (or infringe) if a law violates our legal rights?
If a law violates charter rights based on a court ruling:
Strike Down: The law is invalid.
Read Down: Part of the law must be changed.
Read In: The law needs amendments, but remains constitutional.
When was the Charter enacted ?
April 17th, 1982
Who was the prime minister responsible for the Charter?
Pierre Trudeau
What area does the Charter apply to?
Governments at the federal, provincial, and municipal levels, along with their citizens, are not allowed to engage in private acts of discrimination or violate human rights.
Why did this PM want to create a” just society”? Explain his idea of trying to create this in Canada:
Promote and protect Canadians’ rights and freedoms to ensure equality, national unity, multiculturalism, bilingualism, and social justice for all citizens.
What does “entrenching our Rights and Freedoms“ mean?
making certain rights immune to change
How did entrenching our Rights and Freedoms in the Charter make it harder for the federal government to misuse our civil and legal rights?
It prevents future governments from changing laws that protect citizens and makes it harder to infringe on rights. Parliament must consider Charter implications when creating laws, as these protections can’t be easily altered or overridden by regular legislation.
How do Federal and provincial legislatures use Section 1 (Reasonable Limits Clause) of the Charter to “reasonably limit” our civil and legal rights ?
Rights can be restricted if there’s a strong reason to do so, and the government must prove this justification. Limitations on rights are acceptable in a free democratic society, and courts determine what is “reasonable” on a case-by-case basis (e.g., freedom of expression may be limited if it promotes hate speech).
What must they prove in court for it to be considered justifiable in a free and democratic society?
They must prove there is a logical reason for the limitation, and it must be justifiable in a free and democratic society.
Why doesn’t the charter apply to private interactions of discrimination between private individuals?
It mainly regulates the relationships between individuals and the government, not interactions among private citizens. Legislatures have not given them the authority to implement specific government policies.
What is the legal precedent that was set by the Oakes Test?
The crown has the burden of proof. Davis Oakes’s right to be presumed innocent until proven guilty was violated when he was charged with possession and trafficking of narcotics. His lawyer argued that this right was infringed.
Explain the Fundamental Freedoms protected under Section 2 of the Charter. ( we are allowed to practice these fundamental freedoms as long as they are within the law. )
- Freedom of Religion / Freedom of Conscience
- Freedom of Belief , Thought , Opinion and Expression
- Freedom of Peaceful Assembly
- Freedom of Association
Section 3 - 5 Deals with Democratic Rights in Canada . How old do you have to be to vote in a federal election ?
- You must be 18 years old to vote
- You must be a Canadian Citizen
- Prisoners are allowed to vote
Section 6 covers Mobility Rights in Canada. What situations could cause us to lose these rights, such as being unable to cross into the USA?
- You have convicted of a criminal offence
- 4 years ago we had Covid Restrictions
Mobility Rights
- Right to enter and leave Canada
- Right to move between provinces and territories
What is Extradition ?
Extradition is when a person is sent back to another country to stand trial. One state hands over an individual for prosecution or punishment for crimes committed in the requesting country. For example, in the Sebastian Burns case, Canada extradited him to the USA, provided he wouldn’t face the death penalty.
How are our rights to a fair trial and protection from cruel punishment as Canadians safeguarded if we’re pursued legally by the U.S. or another foreign country?
- Charter: innocent until proven guilty
- Diplomatic efforts
- International human rights agreements
- Legal counsel
- Extradition treaties
When someone seeks a legal remedy to see if their civil or legal rights have been violated, what conditions must be met for it to be a Charter issue?
Does the Charter apply?
Is it within Charter jurisdiction (between government and individuals in Canada)?
Has the right or freedom been violated?
Can the reasonable limits clause justify it if there’s no remedy under the Charter?
What does the Supreme Court of Canada do to balance our civil and legal rights, and how does the proportionality test from the Oakes case help in this?
Rights can conflict with each other, like the right to life versus freedom of religion. Courts work to find a balance between these rights using the proportionality test, which helps determine how to fairly resolve these conflicts.
SECTION 24
Remedies
If the administration of justice is damaged, the Supreme Court of Canada often supports the accused if their legal rights were violated. This is to ensure they can seek a remedy and have a fair trial.
CASE STUDIES
a) Regina v. Oakes ( Burden of Proof is on the Crown ) Innocent till proven guilty
b) Regina v Big M Drug Mart Case ( hint Lords Day Act and no Sunday shopping was allowed ; Big M Drug Mart won their decision because we are no longer live in a predominantly Christian Country - we are multicultural and thus multi religious - the law was struck down and ruled as unconstitutional
Freedom of Religion versus Freedom of Expression within a Multicultural society
c) Regina v Mann - “ search to Incident “ police officer and public safety must be protected once the objective of the search as changed than a violation as potentially occurred .section 24
d) Regina v. Stinchombe - Full Disclosure must be by the crown to the defence lawyer thus assuring a Fair Trial for the accused party \
e) Dagenais vs CBC - Right to a Fair Trial vs Freedom of Expression
f) Irwin Toy Ltd. v. Attorney General of Quebec - protect young children because they are impressionable and gullible to misleading and violent ads.
g) Regina vs Keegstra - Freedom of Belief and promotion of a Hate crime against an identifiable group - Holocaust was a hoax and exaggeration .
