Module 3 : The Canadian Charter of Rights and Freedoms

Question 1

Introduction to the Charter…

Primer on the rights

Answer 1

• protection of individual rights & freedoms (like civil rights)
• human rights are… inherent (born w them), universal, interrelated & interdependent & individible (connected)
• the state has an obligation to protect these rights

Question 2

Introduction to the Charter…

History of human rights

Answer 2

• 1867 = BNA (had common law system of protecting civil liberties)
• 1930s = WWII
• 1948 = UN passed the Universal Declaration of Human Rights
• 1960 = Canadian Bill of Rights (limited cuz it was a federal law)
• 1962 = Ontario passed the human rights code (provincial law)
• 1982 = Patriation of the Constitution Act & the birth of the Charter

Question 3

Introduction to the Charter…

Charter vs. provincial legislation

Answer 3

• charter… constitutional concept & applies only to the government (not other institutions)
• provincial legislation… quasi-constitutional & wider application

Question 4

The Charter & what it does

Application of the Charter

Answer 4

• s.32 (1) = this charter applies:
• a) to the Parliament & government of Canada in respect to all matters within the authority of Parliament indlucing all matters relating to the Yukon Territory & Nortwest territories; and
• b) to the legislature & government of each province in respect fo all matters within the authority of the legislature of each province

Question 5

The Charter & what it does

What the Charter protects…

Answer 5

1. fundamental freedoms (e.g. religion, thought, expression, association, etc.)
2. democratic rights
3. mobility rights
4. legal rights
5. equality
   More!

Question 6

Interpreting the Charter

Who does the charter protect?

Answer 6

• everyone
• every citizen
• every individual (human)
• but there are limits to this

Question 7

Interpreting the Charter

Vagueness of the Charter

Answer 7

• like wtf is ‘expression’
• Inherent integrity (means something)
• Originalism… what was written at the time is what is meant to be going forward… this is hard to know for sure
• construction = means of interpretation
• living costitutionalism (tree analogy)
• purposiveness
• not ambiguity

Question 8

Limits on the Charter - reasonable limit

Reasonable limit (s.1)

Answer 8

• Section 1 ‘guarantees the rights & freedoms set out in it subject only to such reasonable limits prescribed by laws as can be demonstrably’ justified in a free & democratic society
• This allows for the state to put limits on rights as long as they are reasonably justified

Question 9

Limits on the Charter - reasonable limit

Case: R v. Oakes

Answer 9

• Oakes became the test on how we determine what’s a reasonable limit…
• 1. define right & determine if it has been infringed
• 2. if infringed, determine if infringement is justified
• if it passes the Oakes test, the the infringement is justified and therefore constitutional (is a reasonable limit
• if it fails the Oakes test, the infringement is not justified and therefore unconstitutional (not a reasonable limit)

Question 10

Limits on the Charter - reasonable limit

The Oakes test

Answer 10

1. pressing & substantial objective (asking if the point of the law is important enough to infringe rights)… Proportionality test:
2. rational connection (between pressing substantial objective & infringement, like is there acc a need to infringe to reach objective)
3. Minimally impairing (where most cases fail… its asking if the infringement is the only way this can be done, is it least drastic means?)
4. Proportionate effect (between the benefits of the objective and the impact of infringement, need to be balanced)

Question 11

The extend of an inconsistency is determined by where the legislation fails the Oakes test…

Answer 11

1. Pressing & substantial = failure at first step, you interpret the inconsistency in a broad way
2. Rational connection = fails at 2nd step you interpret it more narrowly
3. minimally impairing = fails at 3rd step, there is a flexible approach depending on the nature of what is going on
4. proportionate effect = flexible

Question 12

Limits on the Charter - Notwithstanding clause

Notwithstanding clause

Answer 12

• section 33 (1) - Parliament or the legislature of a province may expressly declare in an Act that the Act or a provision thereof shall operate notwithstading a provision included in section 2 or sections 7-15 of this Charter
• section 33 (2) - A declaration made under subsection (1) shall cease to have effect 5 years after it comes into force or on such earlier date as may be specified in the declatation (cuz election every 5 years)

Question 13

Limits on the Charter - notwithstanding clause

Summary of section 33 notwithstanding clause

Answer 13

• Section 33 allows the government to pass laws that temporarily override certain rights protected by the Charter (enacts otherwise unconstitutional legislation to be constitutional)
• However, this power is not unlimited, and there are time constraints on how long such overrides can be in effect
• The idea is that this provision allows for a balance between protecting individual rights and providing flexibility for the government to address certain issues.
• prospective only
• rarely used (mostly in Quebec)

Question 14

Enforcing Charter rights

How does a Charter case happen?

Answer 14

• Charter protects individual rights and freedoms, so a case arises when these rights have been violated or infringed
• It has to be an infringement by the STATE
• The government has done something to interfere with the rights & freedoms of someone who is protected
• can arise in ordinary law enforcement
• can challenge law that has been enacted (even if it isnt being enforce necessarily)

Question 15

Enforcing Charter rights

Parties to a Charter case

Answer 15

• Person making a claim = plaintiff / applicant
• versus = STATE / attorney general / defendent / respondent
• Interveners

Question 16

Enforcing Charter rights

What does the plaintiff need to do?

Answer 16

• Legislation is presumed to be constitutional so the plaintiff needs to demonstrate that there IS a violation
• If there is violation, governemnt needs to show this infringement is justified
• Needs to have ‘standing’ (has to be affected by the law) so they need to be able to show that the law impacted them in some way/shape/form

Question 17

Enforcing Charter rights

A couple ways that the court will recognize that a plaintiff has ground to bring a claim…

Answer 17

1. serious constitutional issue at stake
2. if the plaintiff is directly affected or has genuine interest in the issue
3. no other means to bring before the court

Question 18

Enforcing Charter rights

Interveners

Answer 18

• can be a lot at stake in a charter case
• they typically advance different arguements
• the decision about who can intervene can be political

Question 19

Enforcing Charter rights

Enforcement section 24

Answer 19

• Enforcement of Rights and Freedoms (1): Individuals can apply to a court if their Charter rights are infringed or denied & The court can provide an appropriate and just remedy
• Exclusion of evidence (2): if evidence is obtained in a way that violates Charter rights, it may be excluded
• Exclusion happens if admitting the evidence would bring the administration of justice into disrepute
• This is crucial in criminal law, often leading to the dismissal of evidence if obtained through rights violations.
• Individuals can either seek a remedy from the court or have evidence excluded in legal proceedings.

Question 20

Enforcing Charter rights

Remedies (s.52)

Answer 20

• s.52 supremacy clause… if things (or laws) are inconsistent w/ the constitution, they have no force/effect and this has a couple of implications…
• 1) striking down = courts can strike down legislation… this is an invalidation of the entire act of the offending parts
• 2) interpret legislation = interpret in a way that allows for that law to remain constitutional & this can be done in a few ways… reading down legislation (good for over broad legislation) or reading in (used for underinclusivity)

Question 21

Enforcing Charter rights

Remedies (s.24)

Answer 21

• s.24 (1) said the courts can give ‘appropriate & just’ remedies which may be in the form of…
• declarations (statement abt an issue)
• Injunctions (judicial order to stop doing smth)
• damages ($$$)

Question 22

3 questions when s.52 engaged

Answer 22

1. what is the extent of the inconsistency (determined by where the legislation fails the Oakes test^^^)
2. Can inconsistency be dealt with alone? (or does it have to be part of a broader discussion) aka can severence or reading in fix the problem?
3. Should declaration be temporarily invalid? (gives government opportunity to correct what has been wrong)

Question 23

3 questions when s.52 engaged

2) Can inconsistency be dealt with alone? (or does it have to be part of a broader discussion) aka can severence or reading in fix the problem?

Answer 23

• Appropriate if…
• 1. legislative objective is obvious, and it will further objective or constitute a lesser interference
• 2. choice of means not unequivocal, so not an unacceptable intrusion on legislative domain
• 3. does not involve significant intrusion into budgetary decisions

Question 24

3 questions when s.52 engaged

3) Should declaration be temporarily invalid? (gives government opportunity to correct what has been wrong)

Answer 24

• appropriate only in clear cases…
• 1. striking down may pose a danger to the public
• 2. striking down would threaten the rule of law
• 3. suffered from under-inclusiveness, and striking down would deprive deserving persons of benefits

Question 25

3 questions when s.52 engaged summary

Answer 25

• these questions act as guidelines not hard rules

Question 26

Freedom of expression

Section 2(b) expression

Answer 26

• everyone has the following fundamental freedoms… freedom of thought, belief, opinion & expression, including freedom of the press & other media of communication

Question 27

Freedom of expression

What is expression

Answer 27

• expression conveys or attempts to convey a meaning
• 1. truth seeking as inherent good
• 2. participation in social & policial decision-making
• 3. cultivating diversity & human flourishing
• expression exists on a spectrum of speech… (hate, commercial, political) and political speech has the most importance

Question 28

Freedom of expression

Examples of expression cases

Answer 28

• advertising to children?
• tobacco warnings?

Question 29

Equality

section 15 : equality

Answer 29

• s.15(1) = Every individual has the right to be equal before and under the law, right to equal protection and benefit of the law without discrimination & discrimination should not occur based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability
• s. 15(2) = (1) doesn’t prevent laws, programs, or activities aiming to improve conditions for disadvantaged individuals or groups… “Amelioration” means elimination, removal, get rid of… Government programs may target disadvantaged groups for the legitimate purpose of improving their conditions…. Legitimate purposes can justify actions that might appear unequal.

Question 30

Equality

15(1)

Answer 30

• discrimination here can be direst (e.g. we dont hire women) or indirect (may have cloak of legitimacy)
• 2 part test per Withler = (1) does law create a distinction basd on an enumerated (race, sex, etc.)/analogous (ones not states) ground? (2) does distinction create a disadvantage by perpetuating prejudice or stereotyping?

Question 31

Equality

15 (2)

Answer 31

• enables government to pro-actively combat discrimination (amelioration)… They can put into place policies or programs that will try to eliminate disadvantage
• If government can demonstrate an ameliorative purpose, not need to consider s.15(1)