Section 1
Rights And Freedoms In Canada
1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free democratic society.
S. 2
a,b,c,d,
Fundamental Freedoms
2:Everyone has the following fundamental freedoms:
Freedom of conscience and religion;
Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication;
Freedom of peaceful assembly; and
Freedom of association
s.7
Life, Liberty, And Security of Person
7: Everyone has the right to life, liberty, and security of he person and the right not to be deprived thereof except in accordance with the principles of fundamental justice
S.8
Search or Seizure
8: Everyone has the right to be secure against unreasonable search or seizure
S.9
Detention or Imprisonment
9: Everyone has the right not to arbitrarily detained or imprisoned
S.11
b,c,d,f,
11: Any person charged with an offence has the right:
11b: To be tried within a reasonable time
11c: Not to be compelled to be a witness in proceedings against that person in respect of the offence
11d: To be presumed innocent until proven guilty according to law in a fair and public hearing
11f: Except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment
S.12
Treatment or Punishment
12:Everyone has the right not to be subjected to any cruel and unusual treatment or punishment
S.13
Self-Crimination
13:a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence
s.15
1,2,
Equality before and under the law and equal protection and benefit of the law
15: (1) every individual i equal before and under the law and has the right to the equal protection and equal 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
(2) Subsection (1) does not preclude any law, program, or activity that has its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability
s.23.1
a,b,
Language of Instruction
23.1: Citizens of Canada:
Whose first languages learned and and still understood is that of he english or french linguistic minority population of the province in which they reside or
Who have received their primary school instruction in Canada in english or french and reside in a province where the language in which they received that instruction is the language is of the english of french minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.
s.24.1
1,2
Enforcement of guaranteed rights and freedoms
- 1: (1) anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard, to all the circumstances, the admission of it in the proceedings would bring the administration of justice into dispute
s.33
1,3,4
Exception where Express Declaration
33: (1) parliament or the legislature of a province may expressly declared in an Act of Parliament or of the legislature, as the case may be, that the Act or provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this charter.
(3) A declaration made under subsection (1) shall cease to have affect 5 years after it comes into force or on such earlier date as may be specified in that declaration
(4) Parliament or a legislature of a province may reenact a declaration made under subsection(1)
Oakes Test steps
Step 1: Does the issue involve government Law or action? If “yes” continue.
Step 2: 1. What is the objective of the law or government action?
2. What rights are lost by the person?
3. What’s more important: The Judges decision, or the persons rights?
Step 3: Does the law meet its purpose? If No it can be struck down. If Yes it can be saved.
Bill 101 and sections used
Ford was one of five retailers challenging the validity of two sections of the Charter of French Language, a Quebec provincial statute commonly known as Bill 101.public signs, posters, and commercial advertising were required to be in French only,
unless health and safety were concerned.She legally challenged the validity of the law on the basis that it infringed on her freedom of expression.The evidence presented by the Attorney General of Quebec did not demonstrate that the requirement of the use of French only was either necessary. Sections Used: S.2.b
5 tools a judge can use
- Strike Down - If a judge believes that a law violates part of the Charter than the judge can remove that law by doing a strike down which makes the law be of “no force or effect”.
- Read Down - If a judge believes a law is just and should be kept, but its use would be
unfair in a specific case, he can make an exception for the law in that specific case. - Read In - If a judge believes that a law was incomplete when it was written and therefore is unfair in a specific case, he can pretend the law says something it does not actually say. The most famous example of this is that S. 15 of Charter does not include Sexual Orientation, however, in the Vriend case, the judge chose to pretend that it did in order to protect Vriend’s rights. The judge’s rationale was that if the people who drafted the Charter had thought of Sexual Orientation he believed that they would have included it in 1982.
- S. 24.2 - Any illegal search, or evidence obtained illegally, must be thrown out of the
trial. If the trial was dependent on that evidence or search then the trial would be dismissed. - S. 24.1 - This basically says that if a judge can not remedy your rights by doing a Strike Down, Read Down, Read In, or by using S. 24.2, then the judge can do whatever else he feels necessary to return you your rights.
Case Law pros
Courts are free from political pressure and therefore can make law on controversial areas without fearing voter backlash. For example, Victorian courts developed law on abortion in 1969, long before parliament did so.
Courts can prevent the law from becoming too rigid. The flexibility of precedent can allow growth in the law and courts can keep the law flexible by giving it meaning.
Courts can fill in the gaps in law left by parliament when a new situation arises. This may come about due to changes in technology or social values.e.g. legal status of transsexual people in the ‘Kevin and Jennifer’ case 2003
Judges have a great level of expertise in the law, as they deal with its day to day application and may be able to, better than parliament, recognise the law’s weaknesses.
case law cons
Court must wait for a new case to arise to make law and such cases are rare. For a case to be bought before the court a party must have legal standing (be directly affected by the issue) and be willing to spend the required time and money.
Judges are often conservative and are, therefore, unwilling to embrace the role of law-maker preferring to leave this to parliament. Indeed, their primary role is to resolve disputes. For instance, in the Trigwell case, a court upheld the old principle that a stock owner was not responsible for wandering stock and the damage it caused.
Courts may be bound by an outdated precedent and an unjust ruling may occur. For example, in 1985 a Victorian Court upheld an old precedent stating that a husband can rape his wife.
Courts can only make law on the case before them, not beyond. As such they cannot fill all the holes left by parliament. Additionally, changes to the law are made ex post facto (after the event). They have no ability to make law anticipating a future case.
Judges’ resources are limited. They can only focus on facts and issues presented to them by the parties to a dispute. This may prevent them from obtaining a comprehensive picture of facts and law and impact their law-making ability.
Bill of rights pros
Positives of the Bill of Rights
People have fundamental rights, the infringement of which should be illegal. Based on the principle ‘do as you would be done by;. These rights need to be enshrined in a legal document
A system where changes are agreed upon by Parliament and constituted
Bill of rights cons
A bill may enshrine bad principles or those that will change in the future, which binds them, contraining moral growth. Right to arm a gun
Common law can protect rights
Will impede the ability of the police to control crime
Would increase the amount of litigation in courts
Will give more power to the judiciary
If certain rights are left out of the bill they may be seen as having less value
CCRF Pros
Promotes equality and protects our human rights. Not only does it guarantee us fundamental human rights (Section 2), it also assures us that “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination” (Section 15, subsection 1).
It takes a more personal perspective on situations. Rather than just have laws, it looks at how laws effect people and how to make sure the effect is a fair one. For example, in the case Bliss v. Canada in 1979, the Supreme Court stated that it was fine for a pregnant woman to be denied unemployment insurance, since the law applied to both men and women. However, after the Charter came into effect, the same situation would be deemed sex discrimination, and the woman would be granted the insurance.
The Charter is a brief yet comprehensive guide to what freedoms and rights should take precedence.
CCRF cons
Some say that is just a redundant copy of the Canadian Human Rights Act of 1977, of the Bill of Rights from the 1960s.
Others say that it removes the authority of the governmental authorities who we have elected, and gives it to lawyers and judges. This does not seem democratic.
Another common complaint is that these rights are not truly guaranteed, since they are subjected to reasonable limits, and that therefore the document is something to satisfy our desire to be truly free. The people who believe this would say that it actually has no power, since it can be interpreted in any way and have limits apply to it.
Stereotyping
Judging, or forming an opinion of, one person of a group and applying that judgement to all the members of the group
Civil Rights
The rights of citizens(e.g., to political and social freedom and equality), which limit the power a government has over its citizens
Human Rights
Rights that protect one from discrimination by other individuals
