Week 8: The Charter of Rights and Freedoms

After Midterm Week 8: The Charter of Rights and Freedoms The charter of Rights: - S1 = The reasonable limits clause S2 = Fundamental Freedoms S3-5 = Voting Rights (only for citizens) this is the only section limited to citizens. S6 = Mobility Rights – has limitation that we further will discuss S7-14 = Legal Rights – is how state treat individuals, and your right when u faced with criminality such as how police should treat you. S15 = Equality Rights – what court see as discrimination S16 – 22 = Language Rights S23 = Minority Language Education – here protect minority language, basically, where province is focus on one language, they need to provide access to the other language as well. So do not limit the public to one official language within the specific province. We will further discuss the limitation etc. The remaining sections cover how rights work in practice: - S24 – enforcement = covers that when right is violate, the person has the right to go to court The rest are not right, but recognize how charter interpret the following rights, - - S25 – Aboriginal rights not affected = S26 – other rights S27 – Multicultural principle = when court is assessing laws and policies, they need to recognize that Canada is multicultural. S28 – sex equality S29 – Denominational schools S30 – applies to territories S31 – Legislative powers S32 – Application to government = charter only apply to government not individual. Basically, the charter protects us from government action. So, an individual cannot sue their neighbor for violating their right of expression. So, there is a debate, where people wonder whether universities or hospitals are understood as a government for charter right purposes. Basically, can a person complain to court, if the university violates individual is right of expression under the charter. S33 – Notwithstanding clause Charter:    There are some rights are not in Charter!! Anyone in Canada can enjoy the rights in charter (visitors, international students, PR, etc.) The rights in Charter have limitations such as the Mobility right. Section 1: “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” - We can see that there is no guidance to see whether the limit is reasonable limit This opens the door for policy analysis, and some experts have argued that courts are not qubit to deal with this (lack of expertise on particular topic such as medical). Seasonable Limitations: - The court eructated a test to determine the reasonability of the limitation. The case, where the test was established called R. v Oakes ‘Oakes test’ is develop din 1986. The Oakes Test: 1. Sufficiently important objective 2. Proportionality a. Rational connection b. Minimal Impairment c. Overall Balance Notwithstanding Clause (s33 (1)): “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” - There are some conditions on top of that, of the use of Notwithstanding clause. 1. The notwithstanding clause is temporary = must be renewed by the legislature every 5 years The clause is seeing to be rarely used outside of Quebec, and never by the federal Parliament - And viewed by some as illegitimate = it ‘overrides’ rights! Lecture Part 2: Charter “Dialogue” - Charter dialogue between government and court! Criticisms of dialogue - Case example – Tobacoo advertising