Session 7 - Part 2, Chapter 8 – Civil Liberties

Question 1

Affirmative action

Answer 1

A policy designed to improve opportunities for historically disadvantaged groups (e.g., women, Indigenous peoples, visible minorities) to achieve equality, potentially permitting preferential treatment.

Question 2

Bona fide occupational requirement

Answer 2

A justifiable job requirement that is essential for legitimate reasons (e.g., safety) and cannot be removed without undue hardship for the employer, potentially allowing for discriminatory practices.

Question 3

Civil liberties

Answer 3

Rights and freedoms protected by the Charter and other sources, ensuring individuals’ freedom and dignity in their dealings with the government and in private sector matters.

Question 4

Discrimination

Answer 4

Prejudicial treatment of individuals based on protected grounds like race, age, sex, disability, etc., prohibited by human rights legislation.

Question 5

Human rights

Answer 5

Fundamental rights that respect the dignity and worth of every individual, often synonymous with “civil liberties” in the Canadian context.

Question 6

PIPEDA

Answer 6

The Personal Information Protection and Electronic Documents Act is a Canadian law relating to data privacy. It governs how private sector organizations collect, use and disclose personal information in the course of commercial business.

Question 7

What are the key historical factors that contributed to the development of civil liberties protection in Canada?

Answer 7

Key factors include growing dissatisfaction with the “implied” bill of rights after World War II, the influence of the US civil rights movement, the limitations of the Canadian Bill of Rights (1960), and the adoption of the Charter in 1982.

Question 8

Explain the difference between “civil rights” and “civil liberties” in the Canadian context.

Answer 8

“Civil rights” traditionally refers to private law rights between individuals, falling under provincial jurisdiction. “Civil liberties” are generally synonymous with “human rights” and concern the relationship between individuals and the state, encompassing freedoms and protections from government actions.

Question 9

What is the significance of section 1 of the Canadian Charter of Rights and Freedoms?

Answer 9

Section 1 guarantees Charter rights and freedoms but subjects them to “reasonable limits” that can be demonstrably justified in a free and democratic society, recognizing that rights are not absolute.

Question 10

How does the Charter protect democratic rights in Canada?

Answer 10

The Charter protects democratic rights by guaranteeing the right to vote (section 3), limiting the duration of legislatures (section 4), and ensuring an annual sitting of legislative bodies (section 5).

Question 11

Explain the purpose and limitations of the “notwithstanding clause” (section 33) of the Charter

Answer 11

Section 33 allows Parliament or provincial legislatures to override certain Charter rights (sections 2 and 7-15) for a five-year renewable period. However, it cannot override voting rights, mobility rights, or Aboriginal rights, and its use is politically sensitive due to its open disregard for constitutional protections.

Question 12

What are the two steps involved in proving discrimination under section 15(1) of the Charter?

Answer 12

First, the claimant must prove that the law or action creates a distinction based on an enumerated or analogous ground. Second, they must show that the distinction results in discrimination by imposing burdens or denying benefits, ultimately reinforcing disadvantage.

Question 13

Briefly describe the two-part test used to determine if a law that infringes the Charter can be justified under section 1 (charter)

Answer 13

The Oakes test first requires demonstrating that the law serves a pressing and substantial social objective. Then, it must be shown that the means used are proportionate, meaning they are rationally connected to the objective, minimally impair the right, and have a proportionate effect.

Question 14

Describe the main areas of focus for human rights legislation in Canada’s private sector.

Answer 14

Human rights legislation in the private sector primarily focuses on preventing discrimination in areas like employment, housing, accommodation, and the provision of goods and services.

Question 15

What were the main weaknesses of the Canadian Bill of Rights (1960)?

Answer 15

The 1960 Bill of Rights was not entrenched in the Constitution, applied only to federal laws, and was interpreted cautiously by the Supreme Court, particularly in cases concerning equality between men and women.

Question 16

What is the purpose of the Oakes test?

Answer 16

The Oakes test is a legal test used by courts in Canada to determine whether a law that infringes upon a right guaranteed by the Canadian Charter of Rights and Freedoms can be justified under section 1 of the Charter, also known as the “reasonable limits” clause.
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Section 1 acknowledges that the rights and freedoms outlined in the Charter are not absolute and allows for limitations on these rights if those limitations are “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
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The Oakes test was established in the landmark case of R v Oakes in 1986.
The Oakes test involves two parts:
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Important Social Objective: The government’s objective in creating the law must be sufficiently important to justify overriding a Charter right. This objective must relate to “concerns which are pressing and substantial in a free and democratic society”.
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Proportionality: If the objective is found to be sufficiently important, the government must then show that the means used to achieve its objective are reasonable and fair.
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Rational Connection: The measures that impair the Charter right must be designed to achieve the government’s objective and must not be “arbitrary, unfair, or based on irrational considerations”.
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Minimal Impairment: The right should be impaired “as little as possible”, and if it’s possible to achieve the objective while impairing the right to a lesser degree, the government must do so.
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Proportionate Effect: This component weighs the benefit to society from the law being in place against the negative effects on those whose rights are limited by the law. The more a right is impaired, the more important the objective must be.