The Charter of Rights and Freedoms

1. The Charter of Rights and Freedoms Application, Limitations, Enforcement, and Remedies

2. Important Elements of the Charter • the recognition of the “fundamental freedoms” of conscience and religion, opinion and expression, assembly and association; • a list of legal rights governing search and seizure, arrest, criminal procedure, detention and punishment; • the right to equal protection and benefit of the law among individuals; • the important collective rights of minority language education and denominational schools; • a general subjection of Charter rights to limitations that are “demonstrably justifiable in a free and democratic society.”

3. Main Ideas: • Rights have limitations. • Sometimes the rights of one individual or group may conflict with the rights of another individual or group.

4. Rights are not absolute. • There are often limits placed on these rights. • When it is impossible to honour two important rights, limits are placed on one or both of the rights • The goal is to achieve a balance - to preserve important qualities of the rights while allowing them to coexist • This principle applies to all legal rights

5. What is the difference between a right and a freedom? • We often use the terms interchangeably but, in law, there is a difference. • A legal right is something that cannot be given to you one time and then denied another time. • If you have a legal right, then some other person has a legalduty to see that this right is honoured. If it isn't, you can rely on the law to see that something is done about the matter. • A freedom implies that no one will interfere with what you want to do. Unlike a right, no one has a duty to oversee or enforce this freedom. • The government, however, still has an obligation not to unduly limit individual freedoms.

6. To Whom Does the Charter Apply? • Some rights apply to everyone (Fundamental Freedoms); • Some rights only apply to citizens of Canada (democratic and mobility rights). • Section 32 of the Charter indicates that it only applies to those matters involving the government or agencies of the government, and persons. It does not apply to issues between private individuals – provincial human rights codes regulate those.

7. Limitations of Fundamental Freedoms and Rights • With the guarantee of rights comes a corresponding obligation that you will not use these rights to harm others in any way. • Irony: sometimes we have to restrict these rights and freedoms. How? • Section 1 of the Charter specifically mandates that individual rights can be subject to limitations; • Section 33 of the Charter gives the government the power to pass laws that might be considered totally inconsistent with the rights in the Charter and, in effect, override them.

8. Section 1 – the Reasonable Limits Clause “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 and democratic society.”

9. What does Section 1 mean? • Our rights are not absolute. Under section 1, our rights can be limited to protect other rights or values important to Canadian society. • For a Charter right to be limited, the limit must be: • prescribed by law • reasonable • justifiable in a free and democratic society

10. What is a justifiable limit? Regina v. Oakes, [1986] 1 S.C.R. 950 (Supreme Court of Canada) • This case explains how Courts apply section 1 of the Charter: how to decide whether a law that limits a Charter right is justifiable in a free and democratic society (known as the "Oakes test" or the “proportionality test"). • Oakes was charged with possession of a narcotic for the purpose of trafficking; • Once the Crown proved possession, the law required that Oakes prove he did not have the narcotic for the purpose of trafficking – this is called REVERSE ONUS – shifting the burden of proof from the Crown to the defendant; • Oakes argued that the REVERSE ONUS PROVISION violated his right to be presumed innocent until proven guilty.

11. The Proportionality(Oakes) Test • To uphold a law that limits a Charter right: • The purpose (or objective) of the limiting law must be important enough to override a Charter right. (It must address a "pressing and substantial" concern, i.e. Reducing drug trafficking.) • The law must limit the Charter right in a way appropriate (or "proportional") to the purpose of the law. This means weighing the interests of society against those of individuals and groups in determining whether to limit rights: • The parts of the law that limit the Charter right must logically relate (be "rationally connected") to the purpose of the law. • The Charter right must be limited as little as possible ("minimal impairment"). • The purpose of the limiting law must not be outweighed by the limit on the Charter right (“proportionality”).

12. The Proportionality(Oakes) Test • In the Oakes case, a drug trafficking law was being challenged. A person could be convicted of trafficking if they possessed even a small quantity of a drug. The Court decided that the law was not rationally connected to the purpose of convicting drug traffickers. It was not reasonable to presume that a person with a small quantity of drugs was trafficking.

13. Section 33 – the Notwithstanding Clause • Included in the Charter to get all the provinces to sign the Constitution (a compromise). • Enables governments (federal and provincial) to limit the application of the Charter • Only applies to section 2 (fundamental freedoms) and sections 7 to 15 (legal and equality rights) of the Charter. • As a safeguard, the legislation must be reviewed every 5 years • Not used very often as it is a serious infringement on the rights and freedoms of citizens.

14. Case: Ford v. Quebec (Attorney General), 1988 • Sect. 33 used in Quebec to validate a French-language only sign law (Bill 101). • Law required that all public signs were to only be in French; • Challenged in Supreme Court by Valerie Ford (a business owner); the SCC deemed it unconstitutional; • The Quebec government responded by passing Bill C-178, which allowed the French-language sign laws to exist, notwithstanding the Charter.

15. What are some examples of limits being placed on our rights and freedoms? 1. Freedom of speech (expression). • You risk being sued for damages if you say (slander) or write (libel) untrue statements about a person and thereby ruin that person's reputation. • You can be charged with a criminal offence if you intentionally promote hatred against an identifiable group, • Unwelcome sexual remarks or teasing in the workplace can be interpreted as sexual harassment. • You could be charged with public mischief if you yelled FIRE in a crowded theatre as a joke • Jokes about bombs in suitcases are bound to land you in trouble with customs officials.

16. 2. Right not to be searched. • Police officers have the right to search vehicles if they have reasonable grounds to believe the law is being broken with respect to drugs or alcohol. • It is also possible for police officers to obtain the necessary authorization to search a house. • Customs officials have the right to search the luggage of passengers. • A school principal has the right, in certain circumstances, to search lockers and students, especially if the safety of other students or teachers is threatened

17. Enforcing the Charter • The Supreme Court of Canada is the 'guardian of the Constitution.' • This court and its nine justices are responsible for interpreting and enforcing the Charter. • Section 24 of the Charter gives people who believe that their Charter rights have been infringed or violated by government or its agencies the right to challenge the government in court. • To determine whether a rights case has merit and will be heard, the Supreme Court considers these questions:1. Was the right infringed or violated by government or its agencies?2. Is the right in question covered under the Charter?3. Is the violation or infringement within a reasonable limit?

18. Once the justices of the Supreme Court have determined that a Charter right or freedom has been infringed or violated, they may • strike down the offending legislation, using section 52 of the Constitution Act, 1982; • provide a certain length of time for the legislation in question to be changed or amended; • In Criminal cases, exclude certain types of evidence, order a new trial, or, depending on the circumstance, dismiss a case completely. • The following is a list of Charter “tests” that courts applied in cases where Charter rights had to be either defended or limited. These “tests” create guidelines to help judges decide whether legislation reasonably or unreasonably infringes upon Charter rights.

19. Charter “Tests” • Minimal Interference • If the solution to an issue or case infringes upon Charter rights, the infringement must be minimal and tolerable in a free and democratic society. • Proportionality • The solution to a problem or issue must not be excessive or disproportionate. Legislators must not overreact to a problem by enacting excessive, overly harsh, overly restrictive legislation. • Bona Fide Legislative Objective • The solution to a problem or issue must not be excessive or disproportionate. Legislators must not overreact to a problem by enacting excessive, overly harsh, overly restrictive legislation. • Rational Connection • There must be a rational connection between the problem and the solution. The problem must be pressing and substantial. The solution must be appropriate and carefully applied.

20. Charter “Tests” Continued • Bona Fide Occupational Qualification • Standards established for employment must be necessary and not arbitrary. False qualifications cannot be created just to deny opportunities to individuals or target groups. • Reasonable Accommodation • Employers must make a reasonable effort to accommodate special needs of employees, in particular, the religious needs of employees. • Stigma • A law or employment standard can not put a mark of disgrace upon people in such a way as to degrade their self-worth. • Human Dignity • A law or employment standard should not cause people to feel unfairly degraded.

21. Remedies • If laws or government actions are found to be in violation of the Charter, they are deemed unconstitutional. • When a law is declared unconstitutional, the court can: • Strike down the entire law; • Cut the particular provision that is at issue; • Read down the legislation (narrow the interpretation of the law – make it more specific); • Read in a term so the legislation will stand and the court will not have to strike it down, i.e. Read in “sexual orientation” to human rights legislation to include it as a prohibited ground of discrimination • Give the appropriate government body the opportunity to change the law.

22. Remedies • If a court determines that an individual’s rights have been violated, the individual can apply for a remedy under section 24 of the Charter. • The court has the option of issuing an injunction – a court order requiring a specified party to take or not take a particular action – or awarding damages – compensation for loss or injury. • The court can also stop, or stay, the proceedings against the accused if continuing the action would be prejudicial to the accused.

23. Assignment: FIDO Case Analysis • Read the handout provided and complete a FIDO Case Analysis for each of the cases. • Due Date: By the end of next week