CHARTER OF RIGHTS AND FREEDOMS

APPLYING THE CHARTER

What would society be like if we were allowed

to do and say anything we like? Irony– there are mechanisms in place to

ensure and protect your rights and freedoms AND there are mechanisms which restrict those same rights and freedoms

YOUR RIGHTS

Section 1- Referred to as the reasonable limits clause

- “Charter of Rights and Freedoms guarantees rights and freedoms set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Read case study R. v. Oakes page -134-135 R. v Oakes

- Accused claimed reverse onus provision violated his rights to be presumed innocent until proven guilty

LIMITATIONS

Courts decide if a law is sufficiently important to

warrant overriding a right or freedom

1. Court will ask if the law relates to societal concerns which are pressing and substantial in a democratic society. IF YES, COURT PROCEEDS TO APPLY PROPORTIONALITY TEST

PROPORTIONALITY TEST

2. Proportionality Test-

Court must determine if limitations on rights satisfy proportionality test (weighing the interests of society against those of individuals and groups)

3 Partsa) Is there a rational connection between the

limitation of rights and objective of the legislation?

b) Does the limitation impair rights or freedoms as little as possible?

c) Are the effects of the limitation proportional to the objective?

Proportionality Test

Section 33 (1) Referred to as the “notwithstanding clause” Section allowed federal and provincial

governments to override some of the rights and freedoms in the Charter

Allows governments to pass legislation that is inconsistent with the rights set out in s. 2 (Fundamental Freedoms) and ss. 7 to 15 (Legal and Equality Rights)

Limitations

Section 52(1) of the Constitution Called the supremacy clause, and it reads as

follows:“The constitution of Canada is the supreme law

of Canada, and any law inconsistent with the provisions of the Constitution is, to the extent of

the inconsistency, of no force or effect” If a law violates a Charter right and cannot be

justified under S.1, the courts may declare the law unconstitutional

Challenges Under the Charter

When a court declares a law unconstitutional

it can:1. Strike Down the entire law or particular

provision that is an issue2. Read Down the legislation if it is interpreted

too broadly and narrow down the understanding of the law

3. Read in a term so that the legislation will stand and the court will not have to strike it down

Challenges Under the Charter

Should a court determine that an individual’s rights

has been violated, he or she can apply to the court for a remedy under Section 24 of the Charter:

24.(1) 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.

24.(2) evidence may be excluded if its collection violated a right, if admitting it “would bring the administration of justice into disrepute”

Remedies under the Charter

If a complaint made in accordance to s. 24(1)

is successful, the court may issue an: injunction: Court order requiring a specified

party to take a specific action Damages: monetary awards for

compensation or injury Stay of Proceedings against the accused

under s.24(2)- all proceedings against the accused will end.

Remedies under the Charter