• Schedule B, Part I of the Constitution Act, 1982, comprises the Charter.
  • Section 52: the Charter is a part of the Constitution which is the supreme law of Canada and all laws must comply with it.
  • Charter can only be altered through the amending formula – substantial consensus of all the provinces and the federal parliament.
  • Section 32 (1) – the Charter applies to both the Federal and Provincial government and legislatures.
  • The Charter intended to protect individuals from the state.  Supreme Court: the Charter does not apply in the private sector.
  • Does the Charter apply to Universities and Hospitals?
  • Just because a body is incorporated and performs a public service does not make it subject to the Charter.
  • McKinney v. University of Guelph, Harrison v. University of B.C. (1990) Supreme Court of Canada
  • University policy regarding retirement dates does not involve government policy and therefore the Charter did not apply.
  • Stoffman v. Vancouver General Hospital (1990) Supreme Court of Canada
  • Government did not control routine matters of the hospital therefore not involving government policy and the Charter not applicable.
  • Limitations of the Charter
  • Section 33, the notwithstanding or overriding clause, permits Parliament or the provincial legislature to pass legislation that is exempt from many (section 2 and sections 7 – 15) of the Charter’s provisions.  Used in Quebec to protect French only sign law from Charter attack.
  • Section 1, reasonable limits clause, to balance the competition between individual rights and collective rights.
  • Rights are not absolute
  • Even though a right has been infringed, it may still not violate the Charter if it can be shown that the limitation
  • R. v Oakes
  • Chief Justice Dickson described how legislation that violated rights and freedoms could be justified.
  • The limitation must be prescribed by law
    • This means that the limitation must be legal, and be part of a law, statute, or regulation that is within the jurisdiction of the level of government that passed it.

  • The objective test:  The government’s objective in limiting a right of freedom must be pressing and substantial.  It must be important to society. (EG. Reducing crime)
  • The proportionality test:  for the government to win their case for limiting individual rights the limitation has to:
    • Achieve an important governmental objective in a rational manner;
    • in R. v. Oakes, the Supreme Court of Canada found that there was no rational connection between the requirement that an accused disprove intent to traffic with the purpose of the law, to prevent drug trafficking. The Court found that the government did not satisfy the rational connection of the Oakes Test.
    • Minimal Impairment;
    • Interfere with the individual rights as little as possible
    • Proportionate Effect;
    • Have an effect that is not disproportionate to its purpose.  Balance the negative effects of any limitation of a right with the positive effects that law may have on society as a whole. It asks if the limit on the right is proportional to the importance of that law’s purpose. It also asks whether the benefits of that law are greater than any negative effects produced by a limitation on a right.
  • For example, section 300 of the Criminal Code of Canada makes it an offence for a newspaper to knowingly publish false information about a person that will have the effect of damaging, or defaming, that person’s reputation. While it may be arguable that to prevent people from publishing whatever they want infringes freedom of expression under s.2 (b), it is reasonable to conclude that without s. 300 of the Criminal Code, any newspaper could knowingly publish false information about a person without facing any consequences. In this example, the central question of proportionality is whether society benefits more from having s. 300 of the Code in place than it loses by having s. 2(b) limited in this way.

  • Guaranteed Rights and Freedoms
  • Supreme Court: adopted a broad interpretation of the Charter
  • The courts should investigate the underlying interests that were to be protected by the right in question (R. v. Big M Drug Mart Ltd., [1985])
  • Sections 21, 22 and 25:  nothing in the Charter should be interpreted or applied so as to take away pre-existing language or Aboriginal rights.
  • Section 26: general purpose of Charter is to expand rather than remove rights and freedoms.
  • Section 27: enhance the multicultural heritage of Canadians.
  • Section 28: rights and freedoms guaranteed equally to males and females.
  • Section 29:  preserves the rights of certain religious schools
  • Section 31: not meant to extend legislative powers.

  • Fundamental Freedoms
  • Section 2
  • Allows individuals to live free from persecution in a state whose official policies the individual not only rejects, but also openly opposes.
  • Political Civil Liberty – associated with operation of parliamentary democracy.
  • Include freedom of association, assembly, press, expression, conscience and religion
  • Influenced by English Bill of Rights, French Declaration of the Rights of Man and of Citizens and the U.S. Bill of Rights.
  • Courts refer to political philosophers and human rights documents of other nations in making decisions.

  • Freedom of Religion

  • Supreme Court of Canada:
  • “Attempts to compel belief or practice denied the reality of individual conscience and dishonoured the God that had planted it in His creatures.”  (R. v. Big M Drug Mart Ltd. [1985])
  • Laws sometimes unintentionally place certain individuals at a disadvantage or subtly pressures them to conform to the religious views of the majority.
  • R. v. Big M Drug Mart Ltd. [1985] Supreme Court
  • Chief Justice Dickson: Freedom of religion involves more than freedom from direct and blatant interference by the state but it extends to freedom from even subtle coercion.

  • Zylberberg v. Sudbury Board of Education (Director) [1988] Ontario Court of Appeal
  • Religious exercises for the opening of the school day and the provincial legislation that mandated them was found to impose a compulsion on religious minorities to conform to the practices of the majority.
  • Democratic Rights

  • Citizenship brings with it certain rights and privileges
  • The Citizenship Act states: citizens are those persons
  • born in Canada
  • born outside of Canada to Canadian citizens or,
  • those granted citizenship under the Act and have taken the oath of citizenship.
  • Rights of citizens include:
  • Right to vote S.3
  • Run for elected office
  • To enter, remain in and leave Canada S. 6
  • The Right to Vote
  • Women did not always have the right to vote.
  • Inmates of penal institutions?
  • Criminal offenders on probation?
  • Sauve v. Canada (A.G.) [1992] Ontario Court of Appeal
  • Challenged s. 51(e) of the Canada Elections Act prohibiting inmates from voting.
  • Found to be in violation of a Charter guaranteed right under s. 3.
  • Mobility Rights

  • Section 6 – Canadians and Permanent Residents have the right to reside and work in any province.
  • Authority of Provincial Government to regulate who is licensed to work in their province
  • Law Society of Upper Canada v. Skapinker [1984] Supreme Court of Canada
  • Legal Rights
  • Influenced by John Locke – inalienable human rights are life, liberty and property.
  • Section 7 reflects this philosophy.
  • Differences:
  • Property rights not guaranteed
  • Security of the person is guaranteed
  • Rights are not absolute – may be removed or restricted in accordance with “the principles of fundamental justice”.
  • Right to Life
  • Protection against the loss of one’s life as a result of state action – capital punishment
  • Abortion
  • Does life have a qualitative meaning – right to have one’s life ended.
  • Abortion
  • Section 287 of criminal code (invalidated now)
  • Pro choice Arguments: denial of equal opportunity to obtain abortion services; not all hospitals in Canada have therapeutic abortion committees and those that do they are male dominated.
  • Anti-abortion:  loose definition of circumstances under which an abortion could be lawfully performed.
  • R. v Morgentaler [1988]
  • S. 251 [now s. 287]of the criminal code judged to be invalid and conviction set aside.  Security of the person violated.
  • Therapeutic abortion committees violated principle of fundamental justice – delayed treatment and therefore endangered health and safety of the woman in question.

  • Capital Punishment
  • Abolished in Canada – never faced a Charter challenge
  • Kindler v. Canada [1991]
  • Extradition of a convicted murderer facing the death penalty in the United States, allowed.
  • No clear consensus in Canada that capital punishment is morally abhorrent and absolutely unacceptable.
  • Reference re Ng Extradition (Can.) [1991]
  • Extradition of a man facing charges, if convicted would lead to death penalty – allowed
  • Euthanasia
  • Sue Rodriguez case [1993]
  • Terminally ill, seeking doctor assisted suicide.
  • Raised issues of liberty and security of the person and if right to life includes quality of life.
  • Discrimination – S. 15(1) Equality rights argued.
  • S. 12 right not to be subjected to cruel and unusual punishment
  • Courts asked to intervene and provide a remedy as parliament unable to do so – time constraints
  • Not allowed.
  • Active euthanasia v. passive euthanasia

  • Right to Liberty
  • Right to privacy in making individual decisions concerning personal integrity and enjoyment of life.
  • Economic rights
  • Security of the Person
  • Physical health or safety is jeopardised.
  • Economic rights, property rights?  Could be implied.

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