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The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms

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The Canadian Charter of Rights and Freedoms

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  1. The Canadian Charter of Rights and Freedoms

  2. What does the Charter do? • The Charter of Rights and Freedoms protects the rights of the individual by limiting the actions of the government • The Charter does not apply to private matters

  3. Jurisdiction Section 32 • Defines the relationship between people, organizations, and companies in Canada & the government • Applies to all federal & provincial governments & their organizations • Does not apply to issues between citizens • See provincial human rights codes

  4. Enforcement Section 24 • The Supreme Court of Canada is responsible for interpreting and enforcing the terms of the Charter • If you believe your Charter rights have been infringed or violated by the government you have the right to challenge the government in court • Must be violated by government or its agencies • The violated right must be covered under the charter • The violation or infringement must not be within a reasonable limit

  5. Guarantee Section 1 • The Charter guarantees the R&F set out in it • Subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society • i.e. if a province wants to pass a law that limits a Charter right, it must prove that this limitation can be justified in a free & democratic society • R. v. Oakes Criteria for Reasonable Limits (The Oakes Test)

  6. The Oakes Test • R. v. Oakes Criteria for Reasonable Limits: • The reason for limiting the Charter must be shown to be important enough to justify overriding a constitutionally protected right • The measure carried out to limit the right must be reasonable and logically connected to the objective for which it was enacted • The right must be limited as little as possible • The more severe the rights limitation, the more important the objective must be “Reverse Onus” against Oakes was dismissed

  7. The Fundamental Freedoms Section 2 • Everyone has the following fundamental freedoms: • A) freedom of conscience and religion • B) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication • C) freedom of peaceful assembly; and • D) freedom of association • Reasonable limitations are necessary (so as to not infringe on other people’s rights)

  8. Conscience & Religion Section 2 A • You have the right to entertain the religious beliefs you choose • The right to declare these beliefs openly without fear • To express your religious beliefs through practice, worship, teaching, and dissemination • Noone can be forced to act in a way contrary to one’s beliefs or conscience • Except, a child’s right to survival comes first in the eyes of the law • Calgary teen to appeal transfusion ruling (p. 87) • Was this limitation on the rights within a reasonable limit?

  9. Thought, Belief, Opinion Section 2 B& Expression, Press & Media • You are free to think and believe what you want and to publicly express your opinions through writing, speech, painting, photography, and other means • Key element in a democracy, and rarely restricted • Media are seen as the means for communicating information to the public & as a forum for speaking out on issues • R v. Robin Sharpe (p. 88, Fig. 4.6) - What do you think?? • Article read

  10. Peaceful Assembly Section 2 C • The freedom to assemble for peaceful purposes • i.e. demonstrating against a government action or marching for a cause • Peaceful • Lawful VS unlawful assembly • Unlawful assembly or riot • 12 or more persons • Disturbs the peace tumultuously • Causes fear in persons nearby

  11. Freedom of Association Section 2 • The ability to connect with other people or groups • i.e. unions, political parties, cultural groups, educational organizations, or sporting clubs • But… young offenders may be ordered not to associate with certain friends • Or… convicted sexual offenders may not be allowed to associate with youth or go near schools • Prison inmates access is restricted as such freedoms would undermine discipline and security • Lavignev. Ontario Public Service Employees Union (p. 89)

  12. Homework!! • (p. 90) #1 – 3

  13. Democratic Rights Sections 3 - 5 • The guarantee to democratic government for all Canadians • The right to vote

  14. Democratic Rights of Citizens Section 3 • The right to vote • “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 • The “Reasonable Restrictions”: • Age, Mental Capacity, Residence, Registration • Members of the Judiciary • Inmates serving more than 2 years

  15. Max Duration of Legislative Bodies S.4 • The right to vote & elect a new federal & provincial government every 5 years, except under extraordinary circumstances • “No HoC or Legislative assembly shall continue for longer than 5 years from election” • “In time of real or apprehended war, invasion or insurrection, they may continue beyond 5 years if not opposed by more than 1/3 of the members of the HoC or the LA

  16. Annual Sitting of Legislative Bodies S.5 • The right to question government actions and policy • “There shall be a sitting of Parliament and of each (provincial) legislature at least once every 12 months”

  17. Mobility Rights Section 6 • The right of Canadian citizens to move in and out of the country and between provinces • Mobility of Citizens • The right to enter, remain in and leave Canada • Overridden by Extradition… • Rights to Move & Gain Livelihood • To move to, reside, and work in any province • Except for… “reasonable residency requirements as a qualification for the receipt of publicly provided social services”

  18. Mobility Rights • Extradition: surrendering an accused person to another jurisdiction to stand trial • Federal Extradition Act: Accused persons can be sent to other countries to face trial because “suppressing crime is of sufficient importance to warrant overriding the constitutionally protected right of citizens to remain in Canada…” • Except: Canada will not extradite people accused of capital offences to countries where the death penalty is legal as the right to life is of most importance

  19. Homework!! • (P.91 #1, 2) • (P.93 #1, 3)

  20. Legal Rights Sections 7 - 11 • Any Canadian who becomes involved with the criminal justice system is guaranteed certain basic protections under the Charter • Investigating a crime • Trial proceedings • Use of evidence Legal Rights Sections 12 - 14 • Punishment for crimes • Issues related to being a witness at a trial

  21. Legal Rights Section 7 • Everyone has the right to life, liberty, and security of the person • You cannot be deprived of these rights except in accordance with the principles of fundamental justice • Straightforward? Maybe not so much… • Right to Life/Security of the Person V. Abortion • “Since a fetus is not a ‘person’, it is not afforded the protection of the right to life as stated in s.7 of the Charter” – Supreme Court of Canada • Right to Security of the Person V. Assisted Suicide • Sue Rodriguez lost her case against the Supreme Court

  22. Unreasonable Search Section 8& Seizure • People will not be subject to unreasonable search & seizure • Police must have a good reason for searching the person, home, or belongings of an accused • Must be conducted fairly • The Controlled Drugs & Substances Act, grants the police the power to search any place (except a residence) wehre they suspect drugs are concealed without obtaining a warrant beforehand

  23. Arbitrary Dentention Section 9or Imprisonment • Everyone has the right not to be arbitrarily detained or imprisoned • Cannot be held for questioning, arrested, or kept in jail by the police without good reason Random stop checks can be justified under s. 1 of the Charter

  24. Rights While Under Arrest Section 10or Detention • Everyone has the right on arrest or detention • To be informed promptly of the reasons therefor • To retain and instruct counsel without delay and to be informed of that right • To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful

  25. Proceedings in Criminal Section 11& Penal Matters • Any person charged with an offence has the right • To be informed without unreasonable delay of the specific offence • To be tried within a reasonable time • Not to be compelled to be a witness in proceedings against that person in respect of the offence • To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal • Not to be denied reasonable bail without just cause • If acquitted of an offence, or found guilty, not to be tried for it again • …

  26. Treatment or Punishment Section 12 • Everyone has the right not to be subjected to any cruel and unusual treatment or punishment

  27. Self-crimination Section 13 • A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings • except in a prosecution for perjury or for the giving of contradictory evidence

  28. Interpreter Section 14 • A party of witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter

  29. Equality Rights Section 15 • Gaurantees legal equality to all Canadians • Forbids discrimination based on race, religion, national or ethnic origin, sex, age, mental or physical disability • Allows affirmative action programs