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Unit 2

To provide citizens with rights that limit the power of the government

A constitution is a blueprint of how a

country should be run (governed) and

what it should be like.

You should know this, eh?

BNA, 1867

Came in force on July 1 – (duh-party day)

Made the Dominion of Canada a country

This gave Canada some control over its

governing, however, we still remained connected

to the British in a strong capacity.

PM Trudeau, in 1982, PATRIATED the Constitution,

which means he pulled the rest of the powers away from Britain and gave them to Canadians. So British Parliament is out of the equation.

The role of the Queen is still present but limited to such ceremonial things as the signing of laws, opening parliament, and acting as Head of State and our military.

All these functions are performed by the GG.

The 1982 Constitution Act had five changes (you don’t need to memorize them all)

One major change was the Charter of Rights

and Freedoms – it is gave civil rights!

This document guaranteed rights to individuals;

this meant that provinces would have to give up

power

This was the major concern to the provinces.

They refused to sign.

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Trudeau managed to get the provinces to sign

the new Constitution and to accept the CRF

But... he had to add a very contentious clause

to the Charter

Section 33 “the notwithstanding clause”.

This is the HAMMER

This allowed provinces to use an escape hatch

and violate rights and freedoms if then needed

to.

Alan Cairns is a professor of political science who has published several volumes on Canada's Constitution and is regarded as a leading academic on the politics of charter rights.

"It has become, to a huge majority of Canadians – including those within Quebec, the fundamental constitutional instrument which they identify. So it has transformed the psyche of Canadians. This document is not just an external arrangement of rules by which we live, this is an attempt to transform who we are and who we actually feel and think we are. On the whole I think it has had that effect.”

Known as the reasonable limits clause, or the limitations clause

Allows the government to legally limit a citizen’s charter rights

Has been used to prevent objectionable conduct as well as prevent unreasonable interference by the government into the lives of Canadians

Charter rights are not absolute and it is necessary to limit them in order to achieve "collective goals of fundamental importance".

"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.“

*NOTE: constitutional lawyers make thousands of

dollars annually fighting over the word "reasonable"

Section 2 of charter (Pg 559 of text)

Conscience and religion (think and believe)

Thought, belief, opinion and expression, press and media

Peaceful assembly (gather ‘yo)

Association (hang out with who you want)

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Famous Quote: "If I cannot give consent to

my own death, whose body is this? Who owns my life?"

The court rejected her

argument in 1993, ruling 5-4 that society's obligation to preserve life and protect the vulnerable outweighed her rights. However, the court was deeply divided.

Sue Rodriguez was diagnosed with ALS in early 1991.

She fought to have a legal right to assisted suicide;

She took her cause to the SCC, but ultimately lost the battle.

Canadians do NOT have the right to die.

under the CCC, assisted suicide is punishable by a maximum sentence of 14 years in prison.

R v. Big M Drug Mart (1985) freedom of religion; Sunday shopping

Dunmore v. Ontario (2001)—the right of farm

workers to form a union

The right to vote for all citizens The right to seek public office Maximum duration for a government (5

years, except in wartime) Parliament must meet at least once a

year

SCC decision where the Court held that prisoners have a right to vote under section 3 of the CCRF

All Canadian citizens have a right to vote

2002

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Right to enter and leave Canada freely

Right to move from province to province and seek work

There has not been a lot of case law involving this section; but you need only look at other countries where this right is restricted to see why this section is needed

Life, liberty and security of the person Protection from unreasonable search and

seizure Rights of a person under arrest Rights of an accused person during trial Protection from cruel and unusual punishment

Search and Seizure

“ Everyone has the right to be secure against unreasonable search or seizure.”

Detention (not the school kind silly)

“Everyone has the right

not to be arbitrarily detained or imprisoned.”

SCC decision which held the abortion provision in the CCC was unconstitutional

it violated a woman's right under section 7 of the CCRF to security of person.

Since this ruling, there have been no criminal laws regulating abortion in Canada.

Morgantaler in jail in the 1970's (he served 10 months)

Morgantaler receiving the Order of Canada in 2008

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(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

11. Any person charged with an offence has the right:

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time; (habeus corpus)

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

"Access to a waiting list is not access to health care." - Chief Justice Beverley McLachlin

Dr. Chaoulli:

SCC appeal case – 1990

established the criteria and standards by which we judge whether an accused's right under the CCRF, s11 (b) "to be tried within a reasonable time" has been infringed.

Askov’s case took 2 years to come to trial – too long!

S. 15 (1) Right to be free from discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

This section is probably the most litigated section in the Charter

S. 15 (2) Gives governments the right to create affirmative action programs

“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

I forget the section,

but I love the pic

The notwithstanding clause (s 33)

Making a law immune to the charter

Not used very often Political suicide

.33

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http://www.youtube.com/watch?v=-EMkcD1cmPA&feature=c4-overview&list=UUmyqFNgK0T-llAloj-Phgsw

3 minutes M. Villeneuve, 2013

Are not ABSOLUTE? Say Whaaaat!

Of course, the rights guaranteed to you in the

CCRF are not absolute

There are two separate sections of the Charter that can be used by the government to limit your rights, in two very different ways

SECTION 1 AND 33

THIS IS CALLED.. THE OAKES TEST

First, the law must have a pressing and substantial objective

Second, the means must be rationally connected to the objective

There must be only a minimal impairment of rights

A deeper look at the Oakes Test The case involved a drug user who was found to be

in possession of a large quantity of hashish oil and cash

At Issue: The Narcotics Control Act, which had a "reverse onus" provision

Contrary to the traditional presumption of innocence, the act said Oakes would have the opportunity at trial to prove that he wasn't intending to traffic the drugs

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David Oakes charged with possession of drugs and possession with intent to traffic

Section 8 NCA (now called the Controlled Substances Act it is the accused’s onus to prove that they did not have the intent to traffic

If not proven, they would be charged with possession with the intent to traffic

Challenged section 8 of NCA as an infringement on his section 11(d) right to be presumed innocent until proven guilty

Section 8 is no longer in effect as it violates section 11(d) *The Oakes Test was created because of this case

Only possible defense? "Yes, your Honour, I was going to smoke it all myself.“

The government said the law was "reasonable"; Oakes' lawyers said is was a violation of a fundamental principle of justice

In making their ruling, the judges set out a framework for interpreting the word "reasonable." This has come to be known as the "Oakes Test.”

First, the law must have a pressing and

substantial objective Second, the means must be rationally

connected to the objective There must be only a minimal impairment of

rights

What exactly was the objective of the controlled drugs and substances act (formerly NA)?

-To stop drug trafficking, right? Is that a "pressing and substantial" objective for

the federal government? Maybe even important enough to justify overriding the Charter?

-Well, yea. Drugs are bad.

The measures adopted in the law must be carefully designed to achieve the objective in question.

Does presuming that someone is guilty help

the government to reduce drug trafficking? -Uh, no.

Presuming someone to be guilty is not, therefore, rationally connected to the objective and thus cannot be justified.

Were Oakes' rights minimally impaired? Well, being presumed guilty is a pretty big

impairment, wouldn't you say?

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Isn't a road side breathalyzer test a total violation of s. 8 (unreasonable search and seizure) of the CCRF?

Police pull you over at random, without the

slightest suspicion that you've done anything wrong, and ask you to blow into a breathalyzer. What's up with that?

If someone were to challenge the section of the Highway Traffic Act that allows these tests, what would a Section 1 analysis look like?

Could it be "saved" under S.1?

First, the law must have a pressing and substantial objective

Second, the means must be rationally connected to the objective

There must be only a minimal impairment of rights

BIRT: In order to protect the integrity and reputation of the legal system, police must be required to obtain all evidence by legal means.

In other words…

No one is above the law, not even the police.

You now know far more about the CCRF than the average Canadian citizen. Be proud.

Very hard to read; court was divided 5-4 and there were three different rulings written by different sets of SCC judges

The Court ruled that the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Rights and Freedoms.

In a 4 to 3 decision, the Court found the Acts violated Quebeckers' rights to life and security of the person under the Quebec Charter; as such the ruling is only binding in Quebec.

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R. v Askov (1990) Delay caused by a backlog in courts can violate a person’s right to have a trial within a reasonable period of time.

Regina v. Tessling (2004) An airplane flew over a house to measure the heat coming from it. (Police suspected a marijuana grow op.)

The police did not have a search warrant to measure this heat.

The Court decided that a warrant was not needed because the information about the heat was open to the public and did not reveal intimate or biological information about people in the house.

R. v. Harrison (2009) At issue: Section 8 & 24 (2) If police search a car—acting on nothing more than a

hunch—and then find 35 kg of cocaine valued at $4 million, do the ends justify the means?

Would the admission of the evidence bring the "administration of justice into disrepute?" contrary to s. 24 of the Charter?

So, should the evidence be admitted, or not?

In 1982, Susan Brooks, Patricia Allen and Patricia Dixon were all part-time cashiers at Safeway who became pregnant.

The Safeway insurance plan that provided benefits for loss of pay due to accident or sickness did not give full benefits for 17 weeks for those who were unable to work due to pregnancy.

The Court unanimously found that Safeway violated the provincial Human Rights Act

by failing to provide equal compensation for those who missed work due to pregnancy.

This decision overturned the earlier, controversial case of Bliss v. Attorney General of Canada, [1979].

Law v. Canada, (1999) discrimination can be identified through a three-step test:

Did the law, program, or activity impose differential

treatment between the claimant and a comparator group? That is, was a distinction created between the groups in purpose or effect?

If so, was the differential treatment based on enumerated or analogous grounds?

If so, did the law in question have a purpose or effect that is discriminatory within the meaning of the equality guarantee?

McKinney v. University of Guelph (1990) Mandatory

retirement. SCC said yes it was discrimination, but it was "saved" under S. 1

Miron v. Trudel (1995) Discrimination based on marital

status. The Court decided that under section 15, common law couples should have the same rights to government insurance benefits as married couples.

Canadian Foundation for Children, Youth and the Law v.

Canada (2004) Age discrimination / assault. A.K.A. "the spanking case." SCC said spanking was OK only IF: child was between the ages of 2-12, no object was used and no hits to the head

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Each of the appellants was born deaf. They contended that the absence of interpreters impaired their ability to communicate with their doctors and other health care providers, and thus increased the risk of misdiagnosis and ineffective treatment

The provincial gov't tried to argue that a) because the interpreters were hired privately, the Charter didn't apply and 2) if it did apply, the decision to cut funding could be saved under S.1 as a "reasonable limit."

Governments, just as they are not permitted

to escape Charter scrutiny by entering into commercial contracts or other “private” arrangements, should not be allowed to evade their constitutional responsibilities by delegating the implementation of their policies and programs to private entities.

James Egan and John Norris Nesbit, the plaintiffs, were a gay couple who had been in a conjugal relationship since 1948. Upon reaching age 65 in 1986, Egan became eligible to receive old age security and a guaranteed income supplement from the government under the Old Age Security Act.

The Old Age Security Act provides that a spouse of the

pensioner may receive a spousal allowance should their combined income fall below a certain amount. When Nesbit reached 65, he applied to the Department of National Health and Welfare for a spousal allowance. However, he was refused on the basis that spouse, defined in section 2 of Old Age Security Act, did not include a member of the same sex.

http://en.wikipedia.org/wiki/Egan_v._Canada

Jo Joseph Arvay, the lawyer who represented Egan.

Egan lost the appeal, but the court was deeply divided.

The case became an important precedent because there was a recognition that sexual orientation was an "analoguous ground" under s. 15

This proved useful in later cases such as M v. H and Vriend

Do you want to know the skinny on the who loves it and who doesn’t?

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What, you mean some people DON’T love

the Charter?

Shockingly, YES. And they come from both sides of the political spectrum.

Charter favours corporate and individual rights, rather than group or social rights

Appointed judges do not have to be

accountable for their decisions No right to housing, education, basic

standard of living Section 1 gives the government an "easy

out" when it limits rights (see Michael Mandel, "The Charter & the Legalization of Politics in Canada)

Gives the Supreme Court too much power; sets up a tension between an elected Parliament and an appointed judiciary

Complain of "judicial activism" by the SCC;

says the SCC has gone too far in asserting its powers

Charter has given too much power to

minority groups and accused criminals (see Morton and Knopff, The Charter Revolution & the Court Party)

In 2006, Liberal leader Paul Martin suddenly raised s. 33 as an election issue, promising that if elected, the Liberals would amend the Charter to prevent the federal government from using it.

Lawyers and politicians debated intensely. Average Canadians basically yawned. No one at

the local Tim Horton's could figure out a) what the heck the notwithstanding clause was, or;

b) why Martin thought they cared about it.

You will recall that one of the key concerns expressed by Charter critics was that it put too much power in the hands of the courts, at the expense of the Parliament.

Section 33 was an attempt to address that concern head on, and to give governments an loophole or "safety valve" if needed.

It was, and remains, intensely controversial. Section 33 is uniquely Canadian—there are few if

any other constitutions in the world that have anything like it.

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All section 33 really says is that if a federal or provincial legislature wants to, they can override the Charter.

But don't panic: they can only violate sections 2 and 7-15.

Oh, wait! Those sections deal with fundamental freedoms, legal rights and equality. We might want those.

The federal or a provincial government can only override the Charter IF:

1. They state in the preamble of the bill which

sections of the Charter the bill violates

2. The law is in effect for 5 years or less—if longer, the law must be renewed. (And elections have to be held every 5 years, right? Try campaigning on this slogan: Hey, vote for us! We violated the Charter1)

So…has section 33 ever been used?

Under a provincial Liberal government—not the PQ—it was used in 1988 to protect the French only sign law, which clearly violated s.2 (freedom of expression)

In effect, the government of Quebec was saying that notwithstanding the Charter, their law was necessary in order to protect and preserve the French language.

The law was not renewed after the 5 year limit.

It was used by the provincial government to justify back-to-work legislation passed during a labour dispute involving dairy farmers

The provincial government thought that their law violated s. 2(d) freedom of association, so they invoked the notwithstanding clause

Embarrassing fact: when the case got to the SCC, the gov't was told that they didn't need to use s. 33 after all. (S. 1 was enough. Doh!)

1988. The Forced Sterilizations Act. Tried to limit the amount of compensation to be

paid out to victims of forced sterilizations Public outcry against the bill was so loud that

Premier Klein ultimately withdrew it. 2005. The Marriage Act. Tried to invoke s. 33 and define marriage as

heterosexual marriage only. However, the SCC ruled in 2004 that only the

Parliament of Canada can define marriage.