Canada’s Charter of Rights and Freedoms

Social Studies 11

The Charter

n  The Charter came into effect on April 17, 1982.

n  It was part of a package of reforms contained in a law called the Constitution Act, 1982.

Purpose

n  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.

The Charter - Purpose

n  The Charter sets out those rights and freedoms that Canadians believe are necessary in a free and democratic society

n  Everyone has the following fundamental freedoms:

n  a) freedom of conscience and religion; n  b) freedom of thought, belief, opinion and expression, including

freedom of the press and other media of communication; n  c) freedom of peaceful assembly; and n  d) freedom of association.

Rights and Freedoms - Examples

n  freedom of expression n  the right to a democratic government n  the right to live and to seek employment anywhere in Canada n  legal rights of persons accused of crimes n  Aboriginal peoples' rights n  the right to equality, including the equality of men and women n  the right to use either of Canada's official languages n  the right of French and English linguistic minorities to an education

in their language n  the protection of Canada's multicultural heritage.

Why is the Charter important as part of our Constitution?

n  The Constitution is the supreme law of Canada. Generally speaking, all other laws must be consistent with the rules set out in the Constitution.

n  If they are not, they may not be valid. Since the Charter is part of the Constitution, laws that limit Charter rights may be invalid. This makes the Charter the most important law we have in Canada.

Are ALL my rights in the Charter?

n  No n  The Charter contains those rights and

freedoms that Canadians believe are essential in a free and democratic country They have been set out in the Constitution as a way of making sure that they are given the greatest protection possible under the law.

Cont’d…

n  There are many other laws that create rights n  The federal government and the provincial and

territorial governments all have laws that provide rights and freedoms

n  laws against discrimination in employment and accommodation, consumer protection laws, environmental laws and, in the area of criminal law, laws that give rights to witnesses, victims and persons accused of crimes

Can our rights be taken away?

n  YES n  Can only be denied if the limits to be

placed on rights/freedoms are those that a free and democratic society would accept

How does government take away our rights?

n  Via the “non-withstanding clause” n  Parliament can make certain laws exempt

from particular parts of the charter n  For example: a law may be passed in

government that effectively allows gender discrimination

How can we respond?

n  The Charter provides for three kinds of actions to persons whose rights have been denied.

n  These actions are referred to as legal “remedies.”

Talk to the courts…

n  First, the Charter says that a person can ask a court for a remedy that is “appropriate and just in the circumstances.”

n  For instance, a court may stop proceedings against a person charged with an offence if his or her right to a trial within a reasonable time has been denied.

Talk to the courts…

n  Second, available when persons carrying out investigations for the government (for example, police officers) violate an individual's Charter rights.

n  This may happen, for example, when they improperly search for evidence on private property and violate a person's right to privacy.

n  In this situation, the person can ask a court to order that the evidence not be used against the person in a trial.

n  A court will make an order like this if it is clear that using such evidence at trial would “bring the administration of justice into disrepute” (under section 24 of the Charter).

Talk to the courts…

n  Third, if a court finds that a law violates Charter rights, it can rule that the law has no force (under section 52 of the Constitution Act, 1982).

n  Section 52: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

The Charter – Legal Rights

n  since we are focusing on the Canadian justice system, we will focus on the legal rights that Canadians have under the Charter of Rights and Freedoms

Sections 7, 8 and 9

n  7 – Everyone has the right to life, liberty and security of the person

n  8 – Everyone has the right to be secure against unreasonable search and seizure

n  9 – Everyone has the right not to be arbitrarily detained or imprisoned

Section 10

n  10 – Everyone has a right on arrest or detention: (a)  To be informed promptly of the reasons (b)  To retain and instruct counsel without delay and to be

informed of that right (c)  To have the validity of detention validated by way of

habeas corpus n  Habeas Corpus = A writ or order requiring that

prisoners be brought before a court to determine if he or she is being held lawfully. The right of habeas corpus is intended to prevent imprisonment without charges.

Section 11

n  Any person charged with an offence has the right: (a)  To be informed without unreasonable delay of the

offence (b)  To be tried within a reasonable time (c)  To be presumed innocent until proven guilty (d)  Not be denied reasonable bail (e)  To the benefit of trial by jury for maximum punishment

of 5 years or more (f)  If finally acquitted of an offence, not to be tried for it

again

Section 12

n  Everyone has the right not to be subjected to any cruel or unusual punishment

Section 13/14

n  13 - Evidence that a witness gives in one case cannot be used against that witness in another case, unless the witness lies or contradicts the evidence

n  14 – A party or wtiness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter

Human Rights in Other Countries

n  The Middle East and North Africa are fertile grounds for human rights violations.

n  Real democracies exist in a minority of countries, while some still subsist under brutal dictatorships.

Human Rights in Other Countries

n  The rights of religious and ethnic minorities are often compromised, and the struggle between religious fanatics and government repressors have often lead to the suffering of many innocent victims.

n  Freedom of speech is greatly curtailed, and human rights NGOs and journalists operate under danger of arrests and lawsuits.

Human Rights - Kuwait

n  dictatorship where all political power is practically in the hands of the Emir.

n  National Assembly has limited powers, and can be suspended by the Emir

n  no political parties n  neither women nor people of non-Kuwait

ancestry have the right to vote.

Human Rights - Kuwait

n  scores of political prisoners in Kuwait n  prison conditions are often inhumane:

There have been reports of torture and inhuman treatment of detainees

n  Freedom of speech and the press is severely curtailed

n  journalists have been sentenced to prison for criticizing the government or Islam.

Women - Kuwait

n  The rights/freedoms of women are much different in Kuwait

n  Women experience legal and social discrimination n  Women are denied the right to vote n  Their testimony is not given equal weight to that of

males in the Islamic courts n  Married women require their husbands' permission to

obtain a passport -- By law only men are able to confer citizenship

n  The Government forbids marriage between Muslim women and non-Muslim men

Human Rights - China

n  China is an authoritarian state in which the Chinese Communist Party (CCP) is the paramount source of power.

n  Human Rights violations are widespread and well-documented

n  they stem from the authorities' intolerance of dissent, fear of unrest, and the absence or inadequacy of laws protecting basic freedoms.

Human Rights - China

n  torture and mistreatment of prisoners n  forced confessions n  arbitrary and lengthy incommunicado detention. n  Prison conditions are harsh n  severe restrictions on freedom of speech, the

press, assembly, association, religion, privacy, and worker rights

n  In many cases, the judicial system denies criminal defendants basic legal safeguards and due process.

Human Rights Violations - China

n  -Lawyers taking on cases that are politically sensitive are regularly repressed. According to the

n  Xu Jian was arrested in 1999 and sentenced to four years imprisonment in 2000 for 'incitement to overthrow state power' because he had provided legal counselling to the workers at his office and via its hotline.

n  Zheng Enchong provided legal advice and assistance to several hundred Shanghai families affected by redevelopment projects. He was sentenced to three years in prison on October 28, 2003 for 'illegally providing state secrets to entities outside China.'

The Rights of Law Enforcers

n  power of police to arrest and question suspects, seize evidence and conduct searches has been reduced since 1982

n  what problems does this lead to? restricts the ability of police to do their duties

The rights of the “arrested”

n  courts will strongly uphold the rights of those held or arrested by the police

n  prisoners have the right to know the reasons for their arrest and have a judge decide whether or not they are being held legally