1 / 19

AP/PPAS 3136.03 -- THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION

AP/PPAS 3136.03 -- THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION. The Canadian Charter of Rights and Freedoms -- Basic Features and Facts regarding the Charter Democratic Rights – Sections 3, 4, 5 -- What democratic rights are contested?

meara
Download Presentation

AP/PPAS 3136.03 -- THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. AP/PPAS 3136.03 -- THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION • The Canadian Charter of Rights and Freedoms -- Basic Features and Facts regarding the Charter • Democratic Rights – Sections 3, 4, 5 -- What democratic rights are contested? Section 3, The right to vote. -- Sauvé v. Canada (Chief Electoral Officer) 2002 • The Notwithstanding Clause – Section 33 • Mobility Rights – Section 6 United States v. Cotroni [1989] 1 S.C.R. 1469 Abdelrazick v. Canada (Attorney General), 2009 FC 580 United States of America v. Burns [2001] 1 S.C.R. 283 • Some Concluding Reflections

  2. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION CONSTITUTION ACT, 1982 Schedule B Part 1 CANADIAN CHARTER OF RIGHTS AND FREEDOMS Guarantee of Rights and Freedoms - Section 1 Fundamental Rights - Section 2 Democratic Rights - Sections 3-5 Mobility Rights - Section 6 Legal Rights - Sections 7-14 Equality Rights - Section 15 Official Languages of Canada - Sections 16-22 Minority Language Educational Rights - Section 23 Enforcement - Section 24 General - Sections 25-31 Application of the Charter - Section 32-33 Citation - Section 34

  3. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION Some further basic points: • The Canadian Charter of Rights and Freedoms came into force on April 17, 1982. • Section 15 of the Charter, Equality Rights, came into force three years after the rest of the Charter, April 17, 1985, to give governments time to get their laws in to line with Section 15. • The Charter is founded on “the rule of law” and is entrenched in the Canadian constitution and contains the rights and freedoms that are deemed necessary for a free and democratic society. • It recognizes fundamental freedoms (e.g., freedom of expression and association); democratic rights (e.g., the right to vote); mobility rights (e.g., the right to live anywhere in Canada); legal rights (e.g., the right to life, liberty, and security of the person); equality rights (e.g., equality before and under the law); recognizes the multicultural heritage of Canadians; protects the official languages and minority language educational rights; and, the rights of the Aboriginal Peoples of Canada.

  4. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION The Canadian Charter of Rights and Freedoms regulates the interactions of the state (federal, provincial and territorial governments) and individuals. As part of the Constitution of Canada, the most important law of the land, it can render “invalid and inoperative any laws that are inconsistent with its provisions.” The Charter has had a major impact on the promotion and the protection of human rights in Canada. The Canadian Bill of Rights, 1960, applies to legislation and policies of the federal government and guarantees the rights and freedoms similar to the Charter. However, it is not part of the Canadian Constitution as such.

  5. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION The federal, provincial and territorial governments have also passed human rights acts and codes that prohibit discrimination on various grounds in relation to employment, the provision of public goods, services, and other facilities, and accommodation. It provides protection against discrimination by individuals in the private sector as well as governments. If your rights and freedoms have been violated then you can seek remedy through the courts in Canada. -- the person must show that the Charter right or freedom has been violated. -- if the limit is one that is set out in law then the Government will have the opportunity to show that the limit is reasonable under Section 1 of the Charter. -- if the court is not persuaded by the Government’s argument then it can grant whatever remedy it deems appropriate under the circumstances.

  6. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION Democratic Rights Democratic rights of citizens 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. Maximum duration of legislative bodies 4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.  Continuation in special circumstances 4.(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.  Annual sitting of legislative bodies 5. There shall be a sitting of Parliament and of each legislature at least once every twelve months. 

  7. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION Section 3, the right to vote, has engendered the most litigation under the Charter. Sections 4 and 5 are essentially constitutional conventions that are commonly accepted and have not generated any litigation. The legal issues raised under Section 3 of the Charter include: • residency and other qualifications to vote; • the drawing of electoral boundaries; • restrictions on third party spending in election campaigns • the guarantees with respect to freedom of expression and association.

  8. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION The Legitimacy of Residency Requirements: Residency requirements have been found by the courts to be reasonable limits on voting rights, given Section 1 (reasonable limits as prescribed by law as can be demonstrably justified in a free and democratic society) of the Charter. Voter Qualifications Voter qualifications are linked generally to the concept of competency. For instance, the voting age requirement of 18 years of age, that is accepted widely as the point at which most people reach maturity and responsibility. The most litigated voter qualification is the denial of the franchise to prisoners in penal institutions.

  9. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION Sauvé v. Canada (Chief Electoral Officer) 2002 SSC 68, [2002] 3 S.C.R. 519. The Canada Elections Act was amended in 1993 to limit the prohibition on voting to those who were sentenced to two years or more. The rationale being that only those who were convicted of serious offences that received a sentence of two or more years would be denied the right to vote. The Supreme Court of Canada in a five to four majority struck down the amended legislation. The Government conceded that the prohibition to voting for prisoners violated their Section 3 rights but that this was justified under Section 1 of the Charter.

  10. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION The Government’s rationale for invoking Section 1 to limit a prisoner’s Section 3 rights was as follows: It furthered the collective aims of Canadian society by: • enhancing civic responsibility and respect for the rule of law; • providing additional punishment or to enhance the general purpose of the criminal sanction. Chief Justice McLachlin who presented the majority opinion stated that any limits on a fundamental right in a democracy requires careful examination. Justice Gonthier argued the minority opinion stated that the “government had advanced a ‘reasonable social and political philosophy’ for felons that “serious criminality” will not be “tolerated by the community.” Felons had broken the “social contract” to abide by the “rule of law” and, therefore, were temporarily disenfranchised.

  11. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION The Democratic Rights of the Charter cannot be overridden by Section 33, the notwithstanding clause. Application of the Charter Exception where express declaration 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. Operation of exception (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. Five year limitation (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. Re-enactment (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1). Five year limitation (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

  12. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION Mobility Rights Mobility of citizens 6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. Rights to move and gain livelihood (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right • (a) to move to and take up residence in any province; and • (b) to pursue the gaining of a livelihood in any province. Limitation (3) The rights specified in subsection (2) are subject to • (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and • (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. Affirmative action programs (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

  13. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION As Robert J. Sharpe and Kent Roach state, “An important element of individual freedom is the right to enter and leave one’s country and to move about it freely.” (p. 211) National citizenship includes the individual’s right to move from one province to another and to be able to work there without prejudice to their provincial origins. Section 6 contains two types of mobility rights: (1) international – Section 6 (1) citizens have the right to enter, remain in, and to leave Canada; (2) interprovincial – Section 6(2)(a) and (b) citizens and permanent residence can “move and take up residence in any province; and to pursue the gaining of a livelihood in any province.” --- However this latter right is subject to the law of general application and provided that it does not discriminate against individuals on the basis of their province of present or previous residence. And, Section 6(3)(a) and (b) permit reasonable residency requirements to receive publicly provided social services.

  14. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION Mobility rights are not subject to the override provisions of Section 33, the notwithstanding clause. The mobility rights in the Charter are also found in the 1966 International Covenant on Civil and Political Rights. This treaty was negotiated under the auspices of the United Nations. It forms part of the International Bill of Rights. The International Bill of Rights is comprised of three of the most important international instruments. -- 1948 Universal Declaration of Human Rights; -- 1966 International Covenant on Civil and Political Rights; -- 1966 International Covenant on Economic, Social and Cultural Rights.

  15. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION Article 12(2) of the International Covenant of Civil and Political Rights states, “everyone shall be free to leave any country, including his own.” Article 12(4) states that “no one shall be arbitrarily be deprived of the right to enter his own country.” The 1948 Universal Declaration of Human Rights at Article 13 includes the following rights: (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. Article 14 of the UDHR is particularly important as well: (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

  16. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION Section 6 of the Charter can be used most often when there has been a denial of a passport, compelled expulsion from the country, or denial on re-entry into the country. According to Sharpe and Roach, Section 6(1) has been invoked the most often when Canadian citizens try to resist extradition to another country for trial. (p. 212) In the United States v. Cotroni [1989] 1 S.C.R. 1469 the Supreme Court of Canada ruled that the surrender of a citizen under the Extradition Act violated Section 6(1) of the Charter. This case turned on the proportionality of means and ends, and the court found that he could be surrendered to stand trial in the United States on the charge of conspiring to possess and distribute heroin. Most of the witnesses were apparently in the United States.

  17. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION Abdelrazick v. Canada (Attorney General), 2009 FC 580 -- The right of a Canadian citizen to enter Canada was at issue and the Federal Court held that the right to enter Canada was violated. The appellant was denied travel documents by the Canadian government to return to Canada from Sudan. -- Passports can be denied for reasons of national security and this has been upheld by the Federal Court of Appeal as a reasonable limit on Section 6(1) right that is proportionate to the objective of combating terrorism. -- In this instance, this process was not used here and the person was denied an emergency passport and the court found that this not justified under Section 1 of the Charter. -- The court ordered that an emergency passport be issued and that person be escorted back to Canada.

  18. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION United States of America v. Burns [2001] 1 S.C.R. 283, 195 D.L.R. (4th) 1. -- This was in the end a Section 7 and not a Section 6 Charter case. It involved two individuals who were wanted for murder in Washington State that has a death penalty. -- The Minister of Justice ordered the individuals extradited to the United States to stand trial without seeking assurances that the death penalty would not be imposed or carried out. The appellants argued that it infringed their rights under Sections 6(1), “the right to remain in” Canada, Section 12, the prohibition against cruel and unusual treatment or punishment, and Section 7, the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice. -- The Supreme Court of Canada ruled that the issues was “the death penalty” and that it involved Section 7. It found that if the two individuals were sent back to the US without assurances that the death penalty would not be imposed that it would violate their Section 7 rights under the Charter.

  19. THE CHARTER OF RIGHTS AND FREEDOMS AND THE LIMITS OF PUBLIC ADMINISTRATION Concluding Reflections: The significance of the Charter and Charter litigation is patently evident. For instance, United States of America v. Burns [2001] – no one can be extradited from Canada to face the death penalty; Sauvé v. Canada (Chief Electoral Officer) 2002 – prisoners cannot be denied fundamental democratic rights such as the right to vote. Democratic and Mobility Rights, Sections 3 to 6 are very important. They cannot be overridden by Section 33 the Notwithstanding Clause. Section 3, the right to vote, and Section 6, mobility rights, are two of the most litigated Sections of the Charter. The Supreme Court of Canada and other appellate courts have decided many Charter cases since 1982 that are helping to set and to expand the limits to public policy and public administration and to help shape and to direct the development of Canadian society. Since the advent of the Charter the judiciary is now playing a more crucial and significant role in government and in determining Canadian public policy and administration.

More Related