Chapter 4 – Canadian Chapter 4 – Canadian Constitutional Law Constitutional Law Unit 2 – Rights and FreedomsUnit 2 – Rights and Freedoms

The Evolution of Canada’s The Evolution of Canada’s ConstitutionConstitution

AgendaAgenda

1. The Evolution of Canada’s 1. The Evolution of Canada’s ConstitutionConstitution

2. Hwk. Sparrow v. The Queen, 2. Hwk. Sparrow v. The Queen, [1990] 1 SCR 1075, p.24-29 McGraw [1990] 1 SCR 1075, p.24-29 McGraw Hill Ryerson CCLS (Classnet) do ?’s Hill Ryerson CCLS (Classnet) do ?’s KU #1,2 & C #2KU #1,2 & C #2

Learning Goal for TodayLearning Goal for Today

By the end of the lesson, students By the end of the lesson, students will be able to analyze how rights will be able to analyze how rights and freedoms are protected under and freedoms are protected under the Charter of Rights and Freedomsthe Charter of Rights and Freedoms

ExpectationsExpectations

CGE3f – examines, evaluates and CGE3f – examines, evaluates and applies knowledge of interdependent applies knowledge of interdependent systems (physical, political, ethical, systems (physical, political, ethical, socio-economic and ecological) for socio-economic and ecological) for the development of a just and the development of a just and compassionate societycompassionate society

Analyze how rights and freedoms are Analyze how rights and freedoms are protected under the Charter of Rights protected under the Charter of Rights and Freedomsand Freedoms

English Common Law and English Common Law and CustomsCustoms

Much of Canadian law is based on Much of Canadian law is based on English common law, customs and English common law, customs and traditions inherited from the UKtraditions inherited from the UK

British North America Act, 1867 (now British North America Act, 1867 (now renamed the Constitution Act, 1982) renamed the Constitution Act, 1982) “a constitution similar in principle to “a constitution similar in principle to that of the United Kingdom”that of the United Kingdom”

British North America Act, 1867British North America Act, 1867

Enacted by British parliamentEnacted by British parliament Canada subject to British law and Canada subject to British law and

bound by foreign policy of Britain (ie. bound by foreign policy of Britain (ie. WWI, Boer War, Alaska Boundary WWI, Boer War, Alaska Boundary Dispute)Dispute)

Final court of appeal UK Privy Final court of appeal UK Privy CounselCounsel

Canada not an independent nationCanada not an independent nation

British North America Act, 1867British North America Act, 1867

WWI was the turning pointWWI was the turning point Canada war contributionsCanada war contributions Canada’s own seat at peace treatyCanada’s own seat at peace treaty Canada signed the peace treaty on Canada signed the peace treaty on

its ownits own

Statute of Westminister, 1931Statute of Westminister, 1931

Britain could no longer legislate for Britain could no longer legislate for CanadaCanada

Canada no longer subject to British Canada no longer subject to British lawslaws

Canada has independent foreign Canada has independent foreign policypolicy

The Canadian Bill of Rights, 1960The Canadian Bill of Rights, 1960

After WWII realization that people After WWII realization that people need formal protection against unfair need formal protection against unfair treatment by governmentstreatment by governments

Diefenbaker championed Canadian Diefenbaker championed Canadian Bill of Rights (codified existing Bill of Rights (codified existing common law rights)common law rights)

The Canadian Bill of Rights, 1960 The Canadian Bill of Rights, 1960 (Don’t Copy)(Don’t Copy)

1. 1. It is hereby recognized and declared that in Canada It is hereby recognized and declared that in Canada there have existed and shall continue to exist without there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental religion or sex, the following human rights and fundamental freedoms, namely, freedoms, namely,

((aa) the right of the individual to life, liberty, security of the ) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be person and enjoyment of property, and the right not to be deprived thereof except by due process of law;deprived thereof except by due process of law;

((bb) the right of the individual to equality before the law and ) the right of the individual to equality before the law and the protection of the law;the protection of the law;

((cc) freedom of religion;) freedom of religion; ((dd) freedom of speech;) freedom of speech; ((ee) freedom of assembly and association; and) freedom of assembly and association; and ((ff) freedom of the press.) freedom of the press.

The Canadian Bill of Rights, 1960 The Canadian Bill of Rights, 1960 (Don’t Copy)(Don’t Copy)

2. 2. Every law of Canada shall, unless it is expressly declared by an Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate Act of the Parliament of Canada that it shall operate notwithstanding the notwithstanding the Canadian Bill of RightsCanadian Bill of Rights, be so construed and , be so construed and applied as not to abrogate, abridge or infringe or to authorize the applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to law of Canada shall be construed or applied so as to

((aa) authorize or effect the arbitrary detention, imprisonment or ) authorize or effect the arbitrary detention, imprisonment or exile of any person;exile of any person;

((bb) impose or authorize the imposition of cruel and unusual ) impose or authorize the imposition of cruel and unusual treatment or punishment;treatment or punishment;

((cc) deprive a person who has been arrested or detained ) deprive a person who has been arrested or detained (i) of the right to be informed promptly of the reason for his arrest (i) of the right to be informed promptly of the reason for his arrest

or detention,or detention, (ii) of the right to retain and instruct counsel without delay, or(ii) of the right to retain and instruct counsel without delay, or (iii) of the remedy by way of (iii) of the remedy by way of habeas corpushabeas corpus for the determination for the determination

of the validity of his detention and for his release if the detention of the validity of his detention and for his release if the detention is not lawful;is not lawful;

The Canadian Bill of Rights, 1960 The Canadian Bill of Rights, 1960 (Don’t Copy)(Don’t Copy)

2. (cont’d) (2. (cont’d) (dd) authorize a court, tribunal, commission, ) authorize a court, tribunal, commission, board or other authority to compel a person to give board or other authority to compel a person to give evidence if he is denied counsel, protection against self evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;crimination or other constitutional safeguards;

((ee) deprive a person of the right to a fair hearing in ) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for accordance with the principles of fundamental justice for the determination of his rights and obligations;the determination of his rights and obligations;

((ff) deprive a person charged with a criminal offence of the ) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without impartial tribunal, or of the right to reasonable bail without just cause; orjust cause; or

((gg) deprive a person of the right to the assistance of an ) deprive a person of the right to the assistance of an interpreter in any proceedings in which he is involved or in interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, which he is a party or a witness, before a court, commission, board or other tribunal, if he does not commission, board or other tribunal, if he does not understand or speak the language in which such understand or speak the language in which such proceedings are conducted.proceedings are conducted.

The Canadian Bill of Rights, 1960The Canadian Bill of Rights, 1960

Limited impact becauseLimited impact because Ordinary statute and could be changedOrdinary statute and could be changed Not entrenched Not entrenched Federal jurisdiction only (ie. Bank yes, Federal jurisdiction only (ie. Bank yes,

supermarket no)supermarket no) Judges reluctant to use to strike down Judges reluctant to use to strike down

lawslaws

The Victoria Charter, 1971, The Victoria Charter, 1971, resumed 1980resumed 1980

1968 - 1981 attempt to reform 1968 - 1981 attempt to reform Canada’s constitutionCanada’s constitution

Anglophone provinces wanted Anglophone provinces wanted entrenchment, patriation entrenchment, patriation (homecoming) & amending formula(homecoming) & amending formula

Quebec wanted more… led to Quebec wanted more… led to stalematestalemate

Patriation of Constitution, April 17, Patriation of Constitution, April 17, 19821982

April 7, 1982, Queen signed UK law April 7, 1982, Queen signed UK law amending the British North America amending the British North America Act, 1867 to Constitution Act, 1982, Act, 1867 to Constitution Act, 1982, adding amending formula and an adding amending formula and an entrenched Canadian Charter of entrenched Canadian Charter of Rights and FreedomsRights and Freedoms

Protects Canadians from all levels of Protects Canadians from all levels of governmentgovernment

Meech Lake AccordMeech Lake Accord

1984 Prime Minister Mulroney, Quebec 1984 Prime Minister Mulroney, Quebec Premier Robert Bourassa and other Premier Robert Bourassa and other premiers agreed to a constitutional premiers agreed to a constitutional amendment package that would:amendment package that would: 1. recognize Quebec as a distinct society1. recognize Quebec as a distinct society 2. give the provinces more power relative 2. give the provinces more power relative

to the federal government (ex. supply to the federal government (ex. supply nominees for the Senate and SCC)nominees for the Senate and SCC)

Not surprising the provinces were on Not surprising the provinces were on boardboard

Meech Lake Accord FailedMeech Lake Accord Failed

Criticized by Trudeau because of Criticized by Trudeau because of Quebec distinct society clauseQuebec distinct society clause

Criticized by aboriginal leaders Criticized by aboriginal leaders because it didn’t address their because it didn’t address their concernsconcerns

Failed June 23, 1990Failed June 23, 1990

Charlottetown Accord, 1992Charlottetown Accord, 1992

Mulroney’s 2Mulroney’s 2ndnd attempt attempt National referendumNational referendum Addressed division of powers issues Addressed division of powers issues

(forestry, mining and cultural affairs)(forestry, mining and cultural affairs) Abolished the federal power of Abolished the federal power of

disallowancedisallowance Aboriginal concerns were addressedAboriginal concerns were addressed Elected senateElected senate Entrenchment of SCC appointmentsEntrenchment of SCC appointments FailedFailed

Humour BreakHumour Break