The Canadian Charter of Rights and Freedoms. Registrar General Andre Ouellet approaches to sign the...
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Transcript of The Canadian Charter of Rights and Freedoms. Registrar General Andre Ouellet approaches to sign the...
![Page 1: The Canadian Charter of Rights and Freedoms. Registrar General Andre Ouellet approaches to sign the Constitution, April 1982 P.M. John Diefenbaker holding.](https://reader035.fdocuments.in/reader035/viewer/2022071807/56649ea75503460f94baa508/html5/thumbnails/1.jpg)
The Canadian Charter of Rights and Freedoms
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Registrar General Andre Ouellet approaches to sign the Constitution, April 1982
P.M. John Diefenbaker holding
Canadian Bill of Rights, 1960
Supreme Court of Canada, Ottawa
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Unit Two: Rights and FreedomsThe Road to the Charter
• 1968: Trudeau became PM. He wanted:
– stronger federation– patriation of constitution– Const. Charter of Rights– better-protected language and
mobility rights
• 1970: Molgate-MacGuigan Committee found strong support for a const. Charter
• 1971: Victoria Charter– agreement for Ch and pat.– opposed in the end by Quebec and
Alberta
• 1976: PQ elected in Quebec
• 1980: Referendum– Trudeau promised renewed
federalism
• 1981: – negotiations; no agreement
– “unilateral” patriation attempt
– reference to 3 Prov Cts of Appeal; appeal to SCC
– SCC Ruling:• legal, but breaks convention
– Nov. 1981 const conference• compromise
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November 1981 compromise
• Patriation of constitution with the amending formula favoured by most of the premiers (the 2/3-50 formula), but which Trudeau had opposed
• acceptance of a constitutional Charter of Rights which would contain a “notwithstanding” (non obstante) clause which authorizes violation of law
• Trudeau insisted that the notwithstanding clause not cover language rights, minority language education rights, or mobility rights; notwithstanding clause would have a 5-year limit
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The Charter of Rightsbecame law April, 1982
• 1. Limitations clause• 2. Fundamental
freedoms:– conscience and religion
– thought, belief, opinion & expression
– press and other media
– peaceful assembly
– association
• 3-5: Democratic rights: – citizens right to vote and run
for office
– 5 yr limit to life of H of C or prov. Assembly except during war etc. if supported by 2/3 vote
– sitting of Parliament, and prov. Legislatures, at least every 12 months
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Mobility and Legal Rights
• 6. Mobility rights– 1. to enter, remain,
leave
– 2. to move within Can. and pursue livelihood, subject to laws that don’t discriminate and residency provisions, and restrictions in provinces of high unemployment
• 7-14 Legal rights: everything in Bill plus– freedom from unreasonable
search or seizure (s. 8)
– trial within reasonable time
– jury trial if liable to 5 years imprisonment
– no retroactive offences
– no double jeopardy
– least punishment if law varied
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Equality and Language
• 15 Equality before and under the law– without discrimination
based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability
– Affirmative action programmes OK
• 16-22: Language– supplements S. 133 of CA,
1867, which is still in effect
– applies to Canada (fed) and New Brunswick only, though other prov’s can opt in
– Eng & Fr “official langs”
– Debates, statutes, Hansard in 2 langs
– Eng or Fr can be used in courts
– right to receive services or communicate in English or French with gov’t
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Minority Lang Education, remedies
• 23: Minority lang ed– citizens whose first
lang is Eng or Fr, or who attended prim school in Eng or Fr, have right to educate children in that lang.
– Siblings rights
– applies where numbers warrant
• 24: remedies– (1) “...such remedy as
the court considers appropriate”
– (2) evidence may be excluded if its collection violated a right, if admitting it “would bring the administration of justice into disrepute”
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General
• 25: aboriginal and treaty rights not reduced by charter, including rights under Royal Proclamation of 1763, and land claims agreements
• 26: other existing rights not reduced by Charter
• 27: multicultural heritage of Canadians to be kept in mind when interpreting the charter
• 28: equal guarantee to males and females (this section isn’t covered by the “notwithstanding” clause)
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General (continued)
– 29: denominational school rights in CA, 1867 not reduced
– 30: Territories included, now and later
– 31: Charter does not extend legislative powers; it is a limit
– 32: Application to Parl, legislatures, gov’ts (& 3 year delay for s. 15)
– 33: a notwithstanding clause can be inserted into legis. re ss. 2 or 7-15; 5 year limit; can be renewed
– 34: ss. 1-34 of CA, 1982 cited as the Charter of Rights and Freedoms
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The Charter and Its Critics
• The Charter undermines legislative supremacy & therefore democracy– Mandel: elected legislators are
closer to the needs of the poor and oppressed. Judges are business-oriented. No Charter decision has/will benefit the disadvantaged
– Morton-Knopff: Judges may be “captured” by special interest groups, mostly on the left. This subverts democracy.
– Charter erodes participatory democracy. Human rights can only be protected by the vigilance of citizens not courts
• Cost of litigation compared to the political process– Lavigne case: NCC spent
$500,000; unions $400,000 +
– OFVAS case: why didn’t artists use political process to change Ont censorship law? Didn’t know how.
– But think of cost of lobbyists
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Charter Critics (2)
– Charter litigation focuses attention on cases that happen to get to court, not necessarily most imp issues for society (Dean Monahan, Osgoode Hall Law School).
• Cts should interpret Ch to promote democracy
• Courts are inappropriate for making policy on human rights
– Stare decisis is backwards looking, compared with the possibility of forward-looking policy formation processes in public service/legislature
• eg. Appropriate procedure for determination of refugee cases
• Schachter case (changes to parental leave policy)
– Adversary system• gov’t lawyers argue for a
narrow interpretation of Charter, whether or not this is gov’t policy
• courts rely on arguments from counsel. Sometimes, no section 1 arguments
• Do judges get a complete analysis of the issues?
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Charter critics (3)
– Backgrounds of judges• older than average adult
• disproportionately married with children
• predominantly male
• New Canadians and Aboriginals under-represented on bench
• most from business or professional family
• tend to be successful
• appointment process for Prov Courts and prov. Superior courts improving. Elevation procedure, and SCC secretive
• Similar problems with lack of representation in legal profession
• Why do we tend to trust judges more than elected politicians?
• Was the Charter worth the upheaval it took to get it?– Will revisit this question last
week of class
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Michael Mandel & the Legalization of Politics
• Judges are supposed to decide based on principle, and avoid policy.– Hard to separate neatly
– Judges tend to be conservative on social and economic questions
– Judges tend to be “active” to support interests of business and capital, and “restrained” in relation to advancing the cause of the disadvantaged
– American precedents tend to support the advantaged
• Our legal system assumes all litigants are equal in ability to defend positions.
– This is why U.S. courts are reluctant to find affirmative action programs constitutional
• Charter is supposed to defend the socially weak against majority rule.
– But the socially strong have more to gain
– Elected govts can act to advance the cause of the disadvantaged. Charter allows them to avoid some issues.
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Knopff & Morton: Charter politics
• Agree with Mandel that Charter allows legislatures to pass difficult issues to courts
• Charter is a “two edged sword” -- can slash to the right or the left, depending on the judges
• Do we want judges to be the “official public philosopher?”
• Should judges be – “non-interpretivists” (will of
framers -- a straight jacket) or
– “non-interpretivists” (creative, but perhaps against democracy)
• The Charter Revolution (1999): – groups with axes to grind have
used Charter to subvert democratic process
• feminist groups
• academics
• special interest groups (eg. Canadian Civil Liberties Assoc, gay and lesbian organizations, the gun lobby, NCC)
• groups representing “Charter” Canadians (the handicapped, seniors, new Canadians, Aboriginals)
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Other Charter commentators
• Christopher Manfredi– s. 33 makes Charter more
democratic
– s. 33 became unpopular because of signs case
• Alan Cairns– Charter has empowered “Charter
Canadians”
• Peter Russell:– Charter is here to stay, so how
can we make sure it works well?• Judicial appointment
• better judicial training
• My view:– basic principle behind
democracy is mutual respect. Mutual respect leads to:
• democratic institutions
• respect for minority rights
• rule of law
• respect for freedom
• respect for integrity
– What is important is how well courts perform discretionary functions, not whether they have discretion. Do judicial decisions promote mutual respect?