Canadian Charter of Rights and Freedoms

January 8, 2018 | Author: Anonymous | Category: Social Science, Law, Constitutional Law
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Canadian Charter of Rights and Freedoms


Why would someone want to immigrate to Canada?

What is a “right”? • A right is a legal, moral or social entitlement that citizens can expect, mainly from the government. Example: In Canada, a person is entitled to a fair trial.

What is a “freedom”? • A freedom is a right. It is your right to live your life without interference from the government. Freedoms do have limitations to protect public safety and also to protect the rights and freedoms of others. Example: In Canada, you have the right to search for employment in any part of Canada.

The 5 W’s of the Charter

Who was the person responsible for overseeing the Charter when it was created? • Former Prime Minister of Canada-Pierre Elliott Trudeau, made it a goal to have the Charter entrenched- meaning that it is protected and can only be changed by an amendment to the Constitution. A government in power cannot just change, modify or eliminate any parts of the Charter. In order to change anything in the Charter, a referendum must be held or a large majority at all levels of government must vote for change.

What is the Charter? • The Charter is a document which outlines a person’s rights and freedoms. It is how people can expect to be treated by all levels of government in Canada and all of the government agencies that act on behalf of the government. (example: RCMP, Dept. of Fisheries)

When did the Charter take effect? • The Charter became part of the constitution in 1982.

Where does the Charter have jurisdiction/power? • In all parts of Canada and with all levels of Government.

Why do we have a Charter of Rights and Freedoms? • Before the Charter, there were other pieces of legislation such as the Canadian Bill of Rights, but they weren’t as complete and definite as the Charter. The purpose of the Charter is to control the behaviour of the government.

Some other important things you need to know about the Charter… • Rights and freedoms are not absolutemeaning there are limitations. The safety of the general public will always come first- not the right of an individual. For example, although we have the right to freedom of speech, the government will limit that right so that people will not be permitted to speak falsely about another person without consequence.

• The Charter does not regulate relations between individuals. Examples: * A mother will not let her child go to a friend’s house based on religion. * An employer won’t hire someone based on religion. You do have protection to avoid and/or address discrimination with individuals in society, but not using the Charter of Rights and Freedoms.

• If your rights have been violated by the government or an agency of the government, you can take the government to court. This falls under the category of constitutional law. Your case will be heard by the Supreme Court of Canada in which a panel of nine (9) judges will hear your case. It is their job to interpret the Charter as it is written, hear about the incident at hand and then make a decision as to whether or not something “unconstitutional” or unfair has taken place.

Checking Your Understanding… Shirley attempts to enter a private men’s club in which no women are allowed. The man at the door refuses her entry. Have her Charter rights been infringed/violated? Explain.

• Lastly, when all levels of government are making laws, they must make laws which do not contradict the Charter of Rights and Freedoms. Example: Death Penalty However, there are always exceptions….

The Notwithstanding Clause… When the Charter became part of the constitution, not all people were happy- namely politicians. The previous piece of legislation prior to the Charter was the Canadian Bill of Rights. The Bill of Rights was part of statute law and therefore, allowed governments in power to change and amend parts of the Bill of Rights as they saw fit. This idea displeased many citizens of Canada because their rights were constantly changing depending on the government in power. So, by creating the Charter, citizens would once and for all know their rights and freedoms without having to worry about change, etc.- they were, in fact, more dependable and stable.

As for the politicians, the creation of the Charter, took away some power and also placed limits on laws created at the various levels of government.

So….. Prime Minister Pierre Elliott Trudeau had to somehow convince these politicians to vote in favour of the Charter. How was this accomplished? • The Notwithstanding Clause was born! This clause allows governments to make laws every now and again even though they may violate a part of the Charter. (Yes! This does go against why the Charter was created!) However, this clause may not be used to overrule certain rights such as the right to vote, minority language education rights and mobility rights. So- there are some limitations.

• It is important to mention that any law that is created using the “Notwithstanding Clause”, can only be in effect for a period of five years or less and is then reviewed. The Notwithstanding clause has been used by many governments since 1982.

The Notwithstanding Clause One of the early uses of the clause took place in 1988. The Supreme Court of Canada rule that Quebec’s Bill 101, (which required all public signs to be printed in French only), was invalid because the law violated people’s rights under the Charterfreedom of expression. The Quebec government really wanted the law, so in response to the Supreme Court of Canada, the Quebec government introduced another bill around the same issue and renamed it Bill 178 by invoking the Notwithstanding clause. What happened?

In 1993, 5 years after the Quebec government introduced their law to have “French only signs” the United Nations Human Rights Commission ruled that the sign violated the international statute of freedom of expression. A compromise was made so that bilingual signs are now allowed, but the French words must be twice as large as the English.

What do you think? Should public schools be permitted to begin each day with a Christian prayer? • If no, then why should schools observe other Christian related practices and celebrate them by having concerts and days off from school?

THE FUNDAMENTAL FREEDOMS a) FREEDOM OF CONSCIENCE AND RELIGION: • You have the right to entertain the religious beliefs you choose, to declare these beliefs through practice, worship, teaching and dissemination. • Parents are free to engage in religious practices, these activities may be curtailed when they interfere with the “best interests of the child” * See Article: Page 87

Activity: Fundamental Freedoms Page 87: “Calgary teen to appeal transfusion ruling” 1.Explain why the Albert Court of Queens’ Bench allowed doctors to proceed with the transfusions.

2. At what age do you think a minor should be granted the power to decide on matters related to their medical treatment? 3.If the 16 year old in this case challenges the decision as an infringement of her section 2 (a) Chart right, do you think her appeal will be allowed? Why or why not?

Freedom of expression…or not? There was once a society where everyone valued peace, order, and religion above all other things. In this society anyone who didn’t maintain peace and order was severely punished, even killed. The punishments were never carried out arbitrarily, but were done according to the law of the country. One day, someone had a brilliant idea. Privately, and with great care, he proved that his idea was correct. His idea though went directly against what all the other believed to be true. Even so, he published his idea in a small book. What should happen to this individual?

This is a scenario that has been repeated throughout history in many parts of the world. In fact, some of our best thinkers of other eras have been punished for saying what they believed to be true.

• Should these individuals have maintained silence and therefore allowed their ideas to wither away just so that ideas of the majority would not be challenged? • Should they have spoken out or published their work? • What might have been the consequence of not speaking out for civilization?

So….a lesson learned about freedom of expression is… There are times when people must tolerate opinions that they absolutely disagree with in order to ensure that even the most disliked individual has the same rights as the most favoured individual in our society.

THE FUNDAMENTAL FREEDOMS b) FREEDOM OF THOUGHT AND EXPRESSION • You are free to think and believe what you want and to publicly express your opinions through writing, speech, painting, photography and other means. • Freedom of the Press is also included. They are allowed to communicate information to the public. • Common limitations of this right include: hate, obscenities, child pornography, slander (saying/writing untrue things), and lastly, sometimes to ensure a fair trial, courts will impose a ban on media

Freedom of Expression Censorship Laws: • Governments have been known to ban or limit the availability of materials that are found to be obscene. For example, movies contain a rating and then the rating limits who can view the films. These laws are made to protect the moral standards of society and to protect people whom may be harmed by these materials.

R. v. Keegstra 1. 2. 3.

What was Keegstra’s main defence for his actions? Did Keegstra abuse the public trust he enjoyed as a teacher? After the Court’s decision, Jim Keegstra said: “If we all have to think the same way, well, then we’re just robots…We were taught in University that you can be skeptical and no, you’ll never be taken to court. Well, you see that’s not true anymore.” Do you agree with Keegstra’s opinion? What section of the Charter supports his view?

The “Riot Act” An excerpt: • Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN.

THE FUNDAMENTAL FREEDOMS c) FREEDOM OF PEACEFUL ASSEMBLY • Everyone has the right to assemble for PEACEFUL purposes such as an orderly demonstration/protest. • Riots (which involve 12 or more people), are not considered lawful assemblies if property is destroyed, people are hurt or fear for their safety or looting takes place. These types of events can be dispersed if it disturbs the peace.

THE FUNDAMENTAL FREEDOMS d) FREEDOM OF ASSOCIATION • We have the right to connect with other people or groups such as unions, political parties, cultural groups, educational organizations or sporting clubs. • Limits on this right usually pertain to: Probation orders/Inmates RCMP Officers/Federal Lawyers: not allowed to join unions

Law In Your Life In 1976, Alice Munro’s Lives of Girls and Women and Margaret Laurence’s The Diviners were removed from some high schools. Discuss whether section 2 (b) of the Charter protects against this type of censorship.

Democratic Rights 1918, 1947, 1960, 1982, 1970, 2000 • • • • •

Homeless people permitted to vote Canada Elections Act lowers the voting age and the minimum age to run for office from 21 to 18 Women permitted to vote Status Indians permitted to vote Chinese and Japanese Canadians permitted to vote in federal elections The right to run or vote for office became guaranteed

• 1918: • 1947: • 1960: • 1982: • 1970: • 2000:

Women permitted to vote Chinese and Japanese Canadians permitted to vote in federal elections Status Indians permitted to vote The right to run or vote for office became guaranteed Canada Elections Act lowers the voting age and the minimum age to run for office from 21 to 18 Homeless people permitted to vote

Should all citizens of a country be eligible to vote? (Why should all citizens be permitted to vote? If not, which groups should be excluded and why?)

Article: Should Inmates Be Allowed to Vote? (page 91)

Democratic Rights: • “Every” citizen has the right to vote and run for office- some restrictions apply • Restrictions may include: age, mental capacity, residence and registration- MUST be a Canadian citizen • The Canada Elections Act now permits inmates serving less than a 2 year sentence to vote Section 4 provides that Canadians will have the right to elect new provincial and federal leaders at least every 5 years except in the time of war or national emergency

Women’s Suffrage

This is the story of our Mothers and Grandmothers and Great Grandmothers who lived only 90 years ago.

Headquarters of an AntiSuffrage Group (c.1910)

Opposition to the goal of women’s suffrage came from many. Some objected because they believed that women would only duplicate the voting of their husbands, while others believed that women were unable to exert the rational thought that voting required.

Anti-Suffrage Pamphlet (c.1910)

The women were innocent and defenseless, but they were jailed nonetheless for picketing the White House, carrying signs asking for the vote.

And by the end of the night, they were barely alive. Forty prison guards wielding clubs and their warden's blessing went on a rampage against the 33 women wrongly convicted of 'obstructing sidewalk traffic.'

They beat Lucy Burns, chained her hands to the cell bars above her head and left her hanging for the night, bleeding and gasping for air.

Lucy Burns

• They hurled Dora Lewis into a dark cell, smashed her head against an iron bed and knocked her out cold. Her cellmate, Alice Cosu, thought Lewis was dead and suffered a heart attack. Additional affidavits describe the guards grabbing, dragging, beating, choking, slamming, pinching, twisting and kicking the women.

Dora Lewis

Thus unfolded the 'Night of Terror' on Nov. 15, 1917, when the warden at the Occoquan Workhouse in Virginia ordered his guards to teach a lesson to the suffragists imprisoned there because they dared to picket Woodrow Wilson's White House for the right to vote. For weeks, the women's only water came from an open pail. Their food--all of it colorless slop--was infested with worms.

When one of the leaders, Alice Paul, embarked on a hunger strike, they tied her to a chair, forced a tube down her throat and poured liquid into her until she vomited. She was tortured like this for weeks… until word was smuggled out to the press.

Alice Paul

It was jarring to watch Woodrow Wilson and his cronies try to persuade a psychiatrist to declare Alice Paul insane so that she could be permanently institutionalized. And it was inspiring to watch the doctor refuse. Alice Paul was strong, he said, and brave. That didn't make her crazy.

• • • •

So, refresh my memory. Some women won't vote this year because-why, exactly? We have carpool duties? We have to get to work? Our vote doesn't matter? It's raining?

“What would those women think of the way I use, or don't use, my right to vote?”

Women voting in Wyoming

All of us take it for granted now, and not just younger women. We ALL need to remember the sacrifice and fight of our previous generations. VOTE!

MOBILITY RIGHTS: Section 6 Some provinces have suggested that for people moving into a province, there should be a residency requirement of a specified time period before being allowed to collect welfare. Should provinces be allowed to enforce this?

The legal answer… There are limitations for people moving province to province. Publicly funded social services (such as welfare) can be restricted to those who have lived in the province for a certain length of time. Provinces are also permitted to create programs to favour its’ own permanent residents- for example: job hiring.

Mobility Rights: • Canadian residents, permanent residents, and in some cases, refugees and illegal immigrants, are protected by the Charter. However, the right to enter, remain in and leave Canada are extended only to Canadian citizens. • Mobility rights allow people to move in and out of the country and in and out of provinces • Canada will EXTRADITE people who have committed crimes in another jurisdiction to stand trial. Canada will not extradite people who have committed CAPITAL OFFENCES. ‘Capital Offence’ indicates a crime that is punishable by death in another jurisdiction. They will only extradite the person if the government has a guarantee that the person will not face the death penalty for his/her crime. This supports a person’s “right to life” in the Charter. (Case: page 41)

• Con Air: Sending Fugitives Back to Face Justice

Legal and Equality Rights Sections 7-11 of the Charter cover all areas of the criminal law- from investigating a crime, ensuring fairness at a trial and deciding how and if evidence will be used. If anyone such as the police, a lawyer or another member of the justice system violates a person’s right(s), the a judge may choose to exclude evidence in a case or dismiss the charges altogether.

Life, Liberty and Security: Section 7 (This is one of the most difficult sections of the Charter to interpret and to make decisions about) • LIFE: This section protects a person’s life- this makes assisted-suicide and the death penalty illegal. You have the right to LIVE. • LIBERTY: Most often associated with criminal cases. This section includes rights such as presumption of innocence, the right to a fair hearing before an impartial decision-maker, and the right of habeas corpus. • SECURITY: This provides SECURITY for an individual from certain forms of corporal punishment and physical suffering.

Consider This! The Supreme Court of Canada has ruled that a fetus is not a “person”, it is not afforded the protection of the ‘right to life’ as stated in section 7. Do you agree with this ruling? Why or why not?

R. v. Parker (2000), Ont. C.A. 359

If you break the law in an effort to save your own life, should you be punished?

Important Definitions Euthanasia: The act or practice of painlessly ending the life of an individual suffering from a terminal illness or an incurable condition. Euthanasia may be active, such as administration of a lethal drug, or passive, such as withholding of extraordinary medical treatment.

Vocabulary • Hospice: A program or facility that provides special care for people who are near the end of life and for their families

Terri Schiavo


Terri Schiavo Video Collection Michael Schiavo Interview After Terri's Death YouTube - Remembering TERRY SCHIAVO YouTube - The Terri Schiavo Story Website Dedicated to Terri

Important Discussion Questions • Who should have had control over Terri’s future- her husband or her parents? Why? • Do think that this case could have occurred in Canada just as easily? • What type of euthanasia is this? • Are living wills important? Would it be a good idea for government to mandate that people over the age of 18 to have one?

Schiavo Case: Classroom Activity • Reflect upon the Terry Schiavo case and the information you have learned today about a person’s right to life. • Choose ONE word which describes what you are thinking about all that you have been exposed to today. • Be ready to share that word with the class. • WORDLE/AUDIO recording

The Latimer Case Who did the case directly involve? • Robert Latimer (father) • Tracy Latimer (daughter) What happened? • Robert admitted to ending the life of his severely disabled daughter, Tracy, when she was 12 years old.

The Latimer Case When did this happen? • October 24, 1993 Where? • Wilkie, Saskatchewan Why? • Robert Latimer claims he was motivated by love and compassion for his daughter.

Mercy Killing is a form of euthanasia. It is involuntary on the behalf of the victim. It is the act of killing someone painlessly (especially someone suffering from an incurable illness) without the informed consent of the patient. Ending the patient’s life is motivated by the love and compassion one has for the patient.

The Latimer Case

The Latimer Case

The Latimer Case: Video Commentary • CBC's Rex Murphy: Commentary on Robert Latimer's Parole (February 28, 2008) • YouTube - CTV News Saskatoon Robert Latimer • CBC Video Latimer's Release

Assisted Suicide is suicide committed by a patient with the assistance from another person. The patient actively takes the last step in ending his/her life.

The Criminal Code COUNSELLING OR AIDING SUICIDE 241. Everyone who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years. …no person is entitled to consent to have death inflicted on him and such consent does not affect the criminal responsibility of any person …This section does not violate the rights of a terminally ill person … In the case of a genuine suicide pact, the surviving party should have a defence to murder.

Sue Rodriguez and the RightTo-Die Debate

"Whose body is this?"

Sue Rodriguez • Sue Rodriguez (August 2, 1950 – February 12, 1994) was an advocate of assisted suicide. • She was born in British Columbia, with the given name Sue Shipley, and grew up in Thornhill, Ontario, a suburb of Toronto. Her first marriage was short lived. • Rodriguez, who lived in Victoria, British Columbia, was diagnosed with ALS in early 1991. She fought to have a legal right to an assisted suicide. She twice took her cause to the Supreme Court of Canada, but ultimately lost both battles. On September 30, 1993, in what would become a landmark decision, Rodriguez v. British Columbia (Attorney General), the SCC held 5-4 against her. • In 1994, she decided to take her own life with the help of an anonymous physician. Svend Robinson, a New Democrat Party MP who had championed her cause, was also present.

Video clips provided by CBC: Video #1 Sue's Legal Struggle Video #2 The Reaction on Parliament Hill Video #3 Other terminally ill patients share views Video #4 At the end of the day...

The Sue Rodriguez Story INQUIY QUESTION:

Do you think people with debilitating diseases or incurable illnesses should have the right to a physician-assisted suicide? Why or why not?

Meet Jack Kevorkian (a.k.a. Dr.Death) • Born May 26, 1928 • Former pathologist • He is most noted for publicly championing a terminal patient's right to die via physicianassisted suicide • He claims to have assisted at least 130 patients to that end. He famously said that "dying is not a crime." • Between 1999 and 2007, Kevorkian served eight years of a 10-to-25-year prison sentence for second-degree murder in the death of Thomas Youk. • He was released on June 1, 2007, on parole due to good behavior

Jack Kevorkian: Video • Jack Kevorkian on 60 Minutes (May 1996)

Hmmm…. • Can you refuse to be searched for drugs? • Can police search your home for suspected concealed drugs? • What is the document called that police can obtain to conduct searches?

Unreasonable Search and Seizure: Section 8 • Must have a good reason for searching person, home or belongings of a person • Search must be conducted fairly • Police can search the place where a person is arrested in order to find a weapon or articles relating to the offence • A warrant isn’t always needed- police can search any place (except a residence) where they suspect drugs are concealed.

Arbitrary Detention or Imprisonment: Section 9 • People cannot be held for questioning, arrested, or kept in jail by police without good reason • Habeas Corpus (Can’t be detained after a period of 24 hours without being charged) • Random (Police) roadside traffic checks are legal.

Rights While Under Arrest or Detention Section 10 • Must be promptly and clearly informed of the reason for arrest, (usually while the arrest is made) right to consult a lawyer/legal aid without delay • If a person requests a lawyer, all questioning stops until the accused and lawyer can speak; police are not privy to that conversation • Police are not permitted to withhold the reason for the arrest • Charges can and might be dismissed if police do not follow proper procedures (don’t inform accused of rights, reason for arrest, etc.)

Rights When Charged with a Criminal offence: Section 11 • • • • • • •

Trial must take place with a reasonable time Accused cannot be forced to testify at his/her own trial Accused is innocent until proven guilty Trial takes place in an impartial/independent court Cannot be denied bail without a good reason For serious charges, the person has the right to trial by jury If someone is tried for an offence and found not guilty, that person cannot be tried on the same charge again. Also, if a person is found guilty and is punished for the offence, he or she cannot be tried or punished for it again. (DOUBLE JEOPARDY) • If someone commits an offence and prior to sentencing a new law is made which may alter the fine or length of imprisonment, the person is sentenced under the law that is most lenient.

Nicotine Addiction… Inmates in federal penitentiaries have argued that their rights have violated. They believe that being denied cigarettes is an example of cruel and unusual punishment. Do you agree? P.S. They have been unsuccessful in their mission!

Cruel and Unusual Treatment or Punishment: Section 12 • Governments cannot treat or punish individuals in an unnecessarily harsh fashion • When sentencing/punishing an accused, a judge will consider the following: * the seriousness of the offence * the personal characteristics of the offender * the particular circumstances of the case The dangerous offender provision of the Criminal Code allows for criminals who have committed a certain number of indictable offences to be declared dangerous and subject to an infinite penalty.

Rights of Witnesses in Court Section 13 • Witnesses giving evidence in court cannot have their testimony used against them

• Anyone who is hearing impaired or cannot understand/speak the language used in court has the right to an interpreter

Equality Rights: Section 14 • Every individual is considered equal and the government cannot discriminate. (This includes discrimination on the basis of race, gender, sexual preference, marital status, etc.) • Our Charter Rights must be applied equally to all persons

Quiz Yourself! 1)

Katrina was arrested for possession of marijuana. The police informed her that she had the right to contact a lawyer without delay. Katrina said, “Who can afford a lawyer?” The police laughed and then asked Katrina several questions about who sold her the marijuana and how much she paid for it. Katrina answered all of their questions. Can this evidence be used against her in court? Why or why not? Cannot be used in court because the police did not inform her of all her legal rights. They should have told her that counsel was available at no cost.

2) Explain why random police checks to determine whether motorists have been drinking are legal even though they violate section 9 of the Charter. Section 9 of the Charter reads: Everyone has the right not to be arbitrarily detained or imprisoned.

When conducting road checks, the police are stopping people for no apparent reason- just to ensure that they are following the rules. • The objective of spot checks is to detect intoxicated drivers and to protect others in society and potentially, save lives. Therefore, this is reasonable. Remember- not all rights are absolute– there are limitations!

Language and General Rights • Canada is a bilingual country; French and English have equal status as official languages in Parliament and Federal Government Agencies. • Minorities in any province have the right to have their children educated in their own language, provided sufficient numbers warrant it. • There is a provision in the Charter which also protects the culture, customs, traditions, languages and other rights and freedoms pertaining to Aboriginal peoples.

A British judge once said: “It is better that ten guilty persons escape than one innocent suffer.” Do you agree?

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