Charter of Rights and Freedoms

Charter of Rights and Freedoms Charter Intro #1 http://www.metacafe.com/watch/313137/canada_charter_of_rights_and_freedoms_www_charterofrights_ca/R/efp_video http://www.youtube.com/watch?v=ngYEcae6ndE

Background: Canada’s Constitution • What is a constitution? • A set of rules that establish both the structure and the fundamental principles of the government in a nation. • Purposes of a constitution: • Helps establish what person or persons will exercise political authority • Helps provide authoritative division of powers between national and regional governments in federal countries like Canada • Helps delineate (outline) the limits of governmental power

Canada’s Constitution • The constitution is NOT just a written document • There are many constitutional CONVENTIONS – customs and traditions that guide government

Canada’s Written Constitution • The written portions of our constitution include: • The British North America Act of 1867 (now known as the Constitution Act of 1867) • The Canada Act of 1982, which includes the: • Constitution Act – 1982, and the • Charter of Rights and Freedoms Canada Act, 1982

Canada’s Unwritten Constitution • Constitutional conventions are customs and traditions that have been used over many years that guide government • These rules are essential to the functioning of our government • While courts cannot enforce constitutional conventions, violations are rare

Canada’s Unwritten Constitution • Some examples of conventions include: • The leader of the party with the most seats becoming Prime Minister • The Cabinet

Canada’s Unwritten Constitution 3. The PM needing the support of the House of Commons to stay in power – if he/she loses a vote of non-confidence, an election is usually held soon after

Prior to the Charter – What protected us? • Prior to the Charter, the Bill of Rights (1960) protected civil rights. • While it did improve the protection of the rights of citizens, it was limited in scope. Being a LAW (an act of Parliament) rather than a constitutional amendment, it: • could be changed easily by another act of Parliament • did not empower the courts to review and strike down contrary laws • did not apply to provincial laws. PM John Diefenbaker with the Bill of Rights in 1960

Benefits of the Charter • The Charter increased the protection of rights of Canadian citizens from the actions and policies of all levels of government because it: • created new rights that did not previously exist in convention or common law. For example, equality rights under section 15 and the minority language rights in sections 16 to 23. • is entrenchedin the Constitution. Therefore it cannot be changed unless the amending formula is met, which is: • 7/10 provincial legislatures representing 50% of the population must agree to the amendment / change PM Trudeau and Queen Elizabeth II signing the Canada Act in 1982 – when the Charter was entrenched in the Constitution

Fundamental Freedoms • Fundamental freedoms are civil liberties that are important to the proper operation of a liberal democracy (which is the type of government we have in Canada). • Section 2 of the Charter protects the following fundamental freedoms: • Freedom of conscience and religion • Freedom of peaceful assembly • Freedom of thought, belief, opinion and expression, • Freedom of the press (and other media of communication) • Freedom of association http://www.metacafe.com/watch/765770/fundamental_freedoms/

Democratic Rights • Democratic rights regulate the functioning of the Canadian democratic system. Sections 3 to 5 of the Charter guarantee the following: • Every citizen of Canada has the right to vote in an election • The right of every citizen to qualify for membership in the House of Commons and provincial legislatures (in other words, the right to run for public office) • No House of Commons and no legislative assembly shall continue for longer than 5 years • In time of war, invasion or insurrection, a House of Commons may be continued by Parliament as long as there aren’t more than one-third of the members of the House of Commons against it • There shall be a sitting of Parliament and of each legislature at least once every twelve months

Mobility Rights • Mobility rights are aimed at making it easier for Canadians to move from one province to another to find work. Section 6 of the Charter provides for the following: • Every citizen of Canada has the right to enter, remain in and leave Canada. • Every citizen of Canada has the right to live and work in any Province

Legal Rights • Legal rights refer to procedural safeguards designed to protect people from governmental abuse under the law. Sections 7 to 14 of the Charter guarantee the following: • Everyone has the right to life, liberty and security of the person • Everyone has the right to be secure against unreasonable search or seizure. • Everyone has the right not to be arbitrarily detained or imprisoned • Everyone has the right on arrest to be informed promptly of the reasons why • Everyone has the right to retain and instruct counsel on arrest • Everyone has the right to trial within a reasonable time • Everyone has the right to the presumption of innocence • Everyone has the right to not self-incriminate themselves • Everyone has the right to be free from cruel and unusual • punishment

Equality Rights • Equality rights involve the right to equality, free from discrimination. Section 15 of the Charter provides for the following: • Every individual is equal before and under the law • Everyone has equal benefit and protection of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (or on any grounds that is analogous)

Official Languages of Canada • Official language rights involve the status and use of English and French in Canada. Sections 16 to 23 of the Charter provide for the following: • English and French are the official languages of Canada and have equality of status and equal rights and privileges • Everyone has the right to use English or French in any debates and other proceedings of Parliament

Minority Language Educational Rights • Citizens of Canada whose first language learned and still understood is that of the English or French have the right to have their children receive primary and secondary school instruction in that language.

Application of the Charter - (some seen as Limitations) • The Charter contains three clauses that define its application: • Section 32 defines the scope of the Charter • Section 1 allows for violation of the Charter’s rights and freedoms in certain circumstances • Section 33 provides for legislative override of the Charter

Section 32 – Scope of the Charter - only applies to Parliament, provincial legislatures, and federal and provincial governments. In other words, the Charter only applies to the relations between government and persons. • includes relations between persons and: • the legislative and executive branches of government, • the public service (bureaucracy, police, etc), or • agencies that exercise power on behalf of the government (hospitals, universities, law societies). • does not, however, include the courts.

Scope of the Charter • The Charter also does not apply to: • relations between private individuals, such as relations between employee and employer or husband and wife. • Instead, human rights codes (i.e. BC Human Rights Code) and the common law regulate these relationships. However, human rights codes and other legislation must conform to the Charter.

“Reasonable Limits” - Section 1 • Section 1 states that the rights and freedoms guaranteed by the Charter may be subject to “reasonable limits” that can be “demonstrably justified in a free and democratic society.” • In other words, the rights and freedoms under the Charter can be violated if the violation is reasonable and justifiable.

For your consideration: Case Study • A social studies teacher teaches his students his own anti-Semitic views, including that the Holocaust never happened, and then tests them on what he believes. • An excerpt of an exam answer for one of his tests reads, “Moles only come out in the dark when no one is watching. Jews only do their deeds when no one is watching. A mole when mad, will strike back and have no mercy when disturbed. Jews strike at any time and have NO mercy." • Is this teacher exercising his right to freedom of expression and should that right be protected?

Case Study - How the Supreme Court Ruled • Regina v. Keegstra, [1990] 3 S.C.R. 697 (Supreme Court of Canada) • The Court decided that hate speech is included in freedom of expression under Section 2 of the Charter. Hate speech conveys meaning, even though the meaning is offensive to many people. • The Court then applied Section 1 of the Charter and decided that limiting hate speech was justified. The goals of protecting people from harm and encouraging tolerance were important, even though this limited freedom of expression.

“Notwithstanding Clause” - Section 33 • Under section 33, the federal Parliament and provincial legislatures have the ability to declare that a particular piece of legislation is “notwithstanding or beyond Charter review”. • This ability to over-ride the Charter only applies to the Charter’s: • fundamental freedoms (section 2), • legal rights (sections 7 to 14) and • equality rights (section 15). • Furthermore, any application of section 33 is only good for five years. After that time, the piece of legislation becomes open to Charter review by the courts.

Bill 178 – Notwithstanding Used • In 1988 – Quebec’s provincial government under Robert Bourassa introduced a new language law (Bill 178) that would require all commercial outdoor signs to be in French only, while allowing English signs inside. • The intent of the law was to protect the use of the French language in commercial activities. • The new amendment invoked the notwithstanding clause to override the Charter’s guarantee of freedom of speech to protect the amended legislation from any further judicial review under the Charter. • When the 5 year limit was up the Bourassa government amended the law and removed the override provision in 1993 by allowing outdoor English signs, but only if French signs were dominant

Enforcement • Anyone whose rights or freedoms have been denied may apply to a court to obtain a ruling on their circumstance. • If the court concludes that there was an infringement on any rights or freedoms guaranteed by the Charter, the evidence shall be excluded. • The Supreme Court of Canada (highest court of appeal) has the final say on Charter cases • This power by the courts to interpret and apply the Charter is seen by some as a limitation, as it shifts power away from government legislatures into the hands of appointed judges / the courts

Concern: Judicial Activism / Supremacy • Because it is up to the judiciary (the Supreme Court) to decide how the Charter is interpreted in cases that appear before them, some say that they now have more power to overrule or undermine the legislature (House of Commons / Parliament) • Judges / Justices – are APPOINTED – and therefore, unaccountable • Some believe ONLY elected, accountable and representative bodies (Legislative Assemblies and Parliament) should be able to make decisions that affect citizens – through the making of laws

Concern: Judicial Activism / Supremacy – cont’ • some critics argue that Justices on the Supreme Court read their ideological views into laws rather than upholding laws as they were written • However, this characterization is not completely true. The Charter has not resulted in judicial supremacy in Canada, but a dialogue between the courts and the legislature

Concern: “Wrong” people are “protected” • protection of legal rights provides too much protection of criminals and becomes an obstacle to the enforcement of laws • minority rights are sometimes viewed as being taken too far to the disadvantage of the majority - for example, some might argue that voting by inmates in correction facilities or the issue around same-sex marriage are detrimental to the welfare of Canadian society • Watch CBC archives (below) & answer Questions http://archives.cbc.ca/IDCC-1-73-1450-9571/politics_economy/voting_rights/

Review • What are the main benefits of the Charter? WHY? • What are the main concerns about / limitations of the Charter? WHY?

Charter of Rights and Freedoms