The Charter of Rights and Freedoms

Question 1

2 main camps of provincial criticism against the Charter

Answer 1

• Blakeney - argued that the Charter gave the judiciary too much power
• Lyon and Lougheed - argued that the Charter erodes parliamentary sovereignty and ruins gov’t functions

Question 2

application of the Charter

Answer 2

• s24 (enforcement): courts have more power than Parliament to decide on constitutional infringements
• s52 (constitutional supremacy): constitution as the supreme law and judicial application cannot be overridden unless s33 applies

Question 3

section 52

Answer 3

“The constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of consistency, of no force or effect.”

Question 4

section 1

Answer 4

• rights are guaranteed but are ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’
• the gov’t can legally limit individual rights bc. there are broader collective rights

Question 5

R. v. Oakes [1986]

Answer 5

• case facts: Darwin Oakes was charged with drug possession under the Narcotic Control Act which at the time had a reverse onus provision (guilty until proven innocent); he argued that this violated his s11(d) rights
• decision: the SCC unanimously agreed that this violated s11(d) and couldn’t be saved under s1, so it struck down s8 of the NCA

Question 6

Oakes Test

Answer 6

• used to determine if a limit is reasonable under s1
• if a gov’t fails at any stage, the SCC can rule the violation unconstitutional

Question 7

the four stages of the Oakes Test

Answer 7

1. pressing and substantial objective - gov’t must prove that the law’s objective is important enough to warrant a violation -> usually passes
2. rational connection - gov’t must prove that its means to achieve objective(s) is rational -> fairly passes
3. minimal impairment - gov’t must prove a law impairs the right as little as possible -> where the struggle begins
4. proportionality - gov’t must prove that the benefits achieved by the law outweigh the harm caused by violation -> another struggle

Question 8

section 2

Answer 8

fundamental freedoms:
a - freedom of conscience and religion
b - freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication
c - freedom of peaceful assembly
d - freedom of association

Question 9

section 3-5

Answer 9

democratic rights:
3 - right to vote in federal and provincial elections
4 - max duration of legislatures as 5 years with some exceptions like war and insurrection
5- legislatures must sit at least once a year

Question 10

section 6

Answer 10

mobility rights:
- right to enter, remain, and leave Canada
- right to move and gain livelihood anywhere in Canada, with some exceptions like affirmative action programs

Question 11

section 7

Answer 11

legal rights: “Everyone has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Question 12

sections 8-14

Answer 12

legal rights:
8 - right to be secure against unreasonable search and seizure
9 - right not to be arbitrarily detained
10 - rights on arrest or detention
11 - right to a fair and timely trial, presumed innocent until proven guilty, etc.
12 - right not to be subjected to cruel and unusual punishment
13 - right not to self-incriminate
14 - right to an interpreter

Question 13

sections 15; 28

Answer 13

equality rights:
15 (1) enumerated grounds - “Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”
28 - rights and freedoms are guaranteed equally to male and female persons

Question 14

sections 16-23

Answer 14

language rights
16-22 - establish French and English as the official languages and right to receive services in both
23 - minority language education rights

Question 15

sections 25-31

Answer 15

general rights:
- existing Aboriginal rights and other existing rights are unaffected by the Charter
- rights must be interpreted to be consistent with Canada’s multicultural heritage

Question 16

section 33

Answer 16

constitutional override (notwithstanding clause): allows Parliament and provincial legislatures to declare a statute shall operate notwithstanding a provision in s2 or ss 7-15; 5 year limitation on the effect but can be renewed