The Charter of Rights and Freedoms Chapter 6
Civil Liberties • Rights and freedoms that individuals enjoy beyond the reach of the government or the state. • Integral part of democratic political system. • In Canada they were recently entrenched in the Canadian Constitution as the Charter of Rights and Freedoms.
The Four Types • Political Liberty – freedom of speech, press, assembly and religion. • Legal Rights – rights of a person suspected or accused of committing a crime, right to counsel, presumption of innocence, bail and a fair trial. • Equality – freedom from discrimination, on the bases of gender, race, religion, or age. • Economic Rights – Canada does not entrench property rights.
Canadian Bill of Rights • 1960 • John Diefenbaker • Applied to federal laws, not provincial • Unclear what the role of the courts were in invalidating legislation. • Only in the Drybones case of 1970 did the Supreme court use it to invalidate a law.
The Drybones Case, 1970 • In 1969, Joseph Drybones was found drunk in a Yellowknife hotel lobby and was arrested. While the Indian Act allowed Aboriginals to drink, they could only do so on reserves. At the time, no reserves existed in the Northwest Territories. • The Supreme Court who found that the police had discriminated against him because of his race when they charged him with drunkenness. This ruling effectively caused the no-drinking clause in the Indian Act to fall into disuse.
Charter of Rights and Freedoms • Replaced the Bill of Rights • Chief Architect was Pierre Trudeau • Added to the Bill of rights by adding fundamental freedoms and legal rights and including democratic, linguistic, mobility, egalitarian and Aboriginal rights. • Charter applied to federal and provincial governments.
Section 1 • Charter rights are not absolute. • “The Canadian Charter of Rights guarantees the rights and freedoms set out in it subject only to such reasonable limits, defined by law, as can be demonstrably justified in a free and democratic society.” • Makes it acceptable to allow legislation to violate certain rights if it is according to reasonable limits.
Reasonable Limits Clause • The objective of the government in limiting a right must be pressing and substantial. • To establish that a limit/infringement of a Right or Freedom is justified under a piece of legislation, two main criteria must be met: • The objective of the limiting measures must be “sufficiently important” (must relate to concerns that are “pressing and substantial”). • The government must show that the means/way chosen to effect this limit are “reasonable and demonstrably justified” (involves a form of “proportionality test”).
OAKES TEST (or “Proportionality Test”) Three important parts of the proportionality test : • measures used to limit a right must be carefully designed to achieve the objective in question (can’t be arbitrary or unfair). • measures used should impair as little as possible the Right or Freedom. • must be a proportionality/balancing between the effects/consequences of the measure/limit and the objective being sought (i.e., the more severe the limit/infringement, the more important the objective must be).
Section 33 • Allows for provinces to side-step the courts. • Notwithstanding clause allows parliament to override a judicial decision regarding a Charter right. • As a point of contention with the Charter, Rene Levesque’s government invokes the notwithstanding clause in all of its legislation. • Has not been used very much outside of Quebec. • Does have to be renewed every five years.
Charter Effects • Legalization of politics – Michael Mandel • Courts make political decisions, but cloak it in legal terms which can be highly suspect. • Mandel argues that it makes politics more elitist. • Enhances individual and corporate rights against the welfare of the community. • Legalized politics is conservative, class-based. Rich have better access. • Could forget about rights not entrenched in the Charter.
Right’s Talk • Others such as Mary Anne Glendon view judicial activism as a negative because it limits the art of politics. • For Glendon, politics is an art because it involves compromise on the part of all parties. • The nature of courts is that there are winners and losers. The winners don’t have to compromise to the losers.