Introduction to Constitutional Rights
Do we have rights or not??
s.33 of the Charter – notwithstanding clause (override)
Allows government legislation to violate certain sections of the Charter (s.2 and s.7-15)
Is very rarely used, which is significant. No government seems to want to take responsibility for invoking it (fear of public reaction?!)
Ford v. AG Quebec is the only significant case where the SCC interpreted the terms of s.33
Defining Limitations – Section 1 of the Charter
s.1 was a contentious element of the Charter – the text says that rights are not absolute and can be limited by government action.
There are two main structural components:
1. “prescribed by law” – if the thing that violated your rights is not prescribed by law, then it cannot be justified.
→ this serves a gatekeeper function. Citizens have notice of how the law will apply, and arbitrary government action is prohibited. We know that the legislature put its mind to the question because of this requirement
2. “reasonable” and “demonstrably justifiable in a free and democratic society”
→ use the Oakes test to show this
Steps of a Charter Case:
Step One: Finding Infringement
- if the law, regulation, or gov’t action allegedly infringes, go to court
- and the onus is on the plaintiff to show the right has been infringed
- precedent is used to describe the scope of what is protected
Assuming that you win….
Step Two: Justifying Infringement Through s.1
- if infringing thing is “prescribed by law” then…
- onus is on the government to justify infringement through two part “Oakes et al” test
- is the purpose of the law pressing and substantial and are the means reasonably justified? (RC, MI, Proportionality)
What’s in the Charter??
s.1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in its subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
s.24 Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
s.2(b) Everyone has the following fundamental freedoms: s.2(b) freedom of thought, belief, opinion, expression, including freedom of the press and other media of communication.
s.7 Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
s.15(1) Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
s.15(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethic origin, colour, religion, sex, age or mental or physical disability.