SECTIONS OF THE CHARTER OF RIGHTS

AND FREEDOMS

The Fundamental Freedoms

Section 2 of Charter – Freedom of Conscience and Religion Everyone has the following fundamental freedoms:

freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication freedom of peaceful assembly; and freedom of association 

s.2(a) – freedom of conscience and religion – means you have a right to entertain the religious beliefs you choose, to declare these beliefs openly without fear, and to express your religious beliefs through practice, worship, teaching and dissemination (spreading these ideas widely)

Lords Day Act struck down because it compelled Sunday as a day of rest courts have also upheld employee’s rights to be accommodated in the practice of

their religion, for ex. permitting days off for observance of their religious holidays religious rights may be curtailed, ex. when in the best interests of a child

s.2(b) – freedom of thought and expression - including freedom of the press and media  free to think and believe what you want and to

publicly express your opinion through writing, speech, painting, photography and other means

freedom of expression is one of the key cornerstones of democracy

“expression” has been considered broadly, ex. signs, hate literature, obscenity, child pornography

s.2(c) – freedom of peaceful assembly right to peaceably assemble (which is lawful) such as

a orderly demonstration or a group of picketers, v. an unlawful assembly or riot.

to be classified as a “riot” the unlawful assembly must consist of 12 or more persons

under the Criminal Code, an assembly can be dispersed if it disturbs the peace “tumultuously” or causes fear in persons nearbyPeaceful assembly?

http://www.youtube.com/watch?v=4VzOUKODdZ4

s.2(d) – freedom of association closely connected to freedom of assembly

– ability to connect with other people or groups such as unions, political parties, cultural groups, educational organizations, or sporting clubs

there are some limits – ex. young offenders ordered not to associate with some of their friends

Democratic Rights

S.3 – every citizen has the right to vote in an election and run for office (other than judges, under 18, lack of mental capacity, don’t live in Canada, etc.)

S.4 – citizens get to elect a new federal & provincial gov’t every 5 years, except during times of war or national emergency

S.5 – parliament & provincial legislative assemblies must hold at least one session a year

Mobility Rights

S.6 – concerns the rights of Canadian citizens to move in and out of the country and between provinces

Extradition – Supreme Court of Canada said that it is Ok to extradite (deport) those accused of a crime to other countries so that they can face trial – the only exception is that Canada won’t extradite to a country where the person would face the death penalty

Legal Rights

those who get involved with the criminal justice system are guaranteed certain basic protections under the Charter

infringement of any of those rights by the police or Crown or anyone else may result in a judge being compelled to exclude evidence or dismiss charges

Section 7: Life, Liberty and Security of the

Person – 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

Section 7: right to life - ex. SCC has ruled that a fetus is not a “person” in

abortion cases & ex. Terminally ill person’s right to assisted suicide (ex. Sue Rodriguez case)

right to liberty - most often associated with criminal cases b/c a person must not be deprived of this right, or imprisoned, except in accordance with the principles of fundamental justice; fundamental justice being the due process of the law, such as the presumption of innocence, the burden of proof, the right to a fair hearing before an impartial decision maker, and the right of habeas corpus

right of security of the person – also interpreted to protect people from certain forms of corporal punishment and physical suffering

Section 8: Unreasonable Search and Seizure – s.8

- Everyone has the right to be secure against unreasonable search & seizure

the police must have a good reason for searching the person, home or belongings of the accused & the search must also be conducted fairly

Section 9: Arbitrary Detention or Imprisonment – s.9 -

Everyone has the right not to be arbitrarily detained or imprisoned

people can’t be held for ?’ing, arrested or kept in jail w/o good reason

not that ride checks do violate s.9 of the Charter, but have been upheld by the SCC under s.1 of the Charter

Section 10: Rights While Under Arrest or Detention – s.10(a) to (c)

first right is to be promptly and clearly informed of the reason for the arrest or detention (usually while arresting or detaining the person)

accused has a right to be informed w/o delay that he or she may obtain the assistance of a lawyer & they need to be given a reasonable opportunity to contact a lawyer ASAP

if the accused cannot afford a lawyer, it must be made clear that legal counsel will be available at no charge

once an arrested person decides to talk to a lawyer the police must stop their ?’ing until the accused & the lawyer have a chance to talk privately

Miranda Rights: http://www.youtube.com/watch?v=2QiFg7MJL3E

Section 11 (a-i): s.11 sets out important rules that protect anyone charged with an offence

s.11(a) accused must be told promptly what the offence is

s.11(b) the trial must take place within a reasonable time http://www.hrcr.org/safrica/access_courts/Canada/r_askov.html

s.11(c) the accused cannot be forced to testify at his or her trial

s.11(d) accused presumed innocent until proven guilty & the trial m/b conducted fairly before an unbiased court

s.11(e) accused cannot be denied bail w/o just cause

s.11(f) for serious trial, accused has the right to a jury trial

Section 11: s.11(g) a court can’t convict an accused unless the

specific law was in place at the time of the offence

s.11(h) if someone is tried for an offence & found not guilty, that person cannot be tried on the same charge again & if a person is found guilty and is punished for an offence, he or she can’t be tried & punished for it again (a situation known as “double jeopardy”

s.11(i) if someone commits an offence & prior to sentencing a new law alters the terms of the fine or terms of imprisonment, that person m/b sentenced under which law is more lenient

Section 12: Cruel and Unusual Treatment or Punishment – s.12 Everyone has

the right not to be subjected to any cruel and unusual treatment or punishment

the gov’t can’t treat or punish individuals in an unnecessarily harsh fashion

what is “cruel and unusual treatment” is contentious, ex. inmates trying to argue that being denied cigarettes falls under this category (unsuccessfully)

factors considered in determining whether a punishment (ie. sentence) is grossly disproportionate, the court will look at (1) the gravity of the offence, (2) the personal characteristics of the offender & (3) the particular circumstance of the case

Section 13 and 14: Rights of Witnesses in Court – s.13/s.14

s.13 – guarantees that witnesses giving evidence in court can’t have their testimony used against them

s.14 – anyone who is hearing impaired or cannot understand or speak the language used in the court has the right to an interpreter

Equality Rights

Section 15: Equality Rights – s.15 every individual is considered = and gov’t can’t

discriminate in its own laws or programs(1) every citizen is equal before and under

the law(2) every citizen has the right to equal protection and

benefit of the law(3) these rights are to be applied equally and without

discrimination What forms of discrimination can someone face?

Language Rights

Sections 16 through 22 of the Charter provide that: Both English or French will be used in Parliament and are Canada’s official languages

Statutes (laws) and Parliamentary records must be published in both official languages

The public can communicate with the gov’t in either English or French

The federal gov’t must provide services in both languages at central offices and elsewhere if there is demand

Either language can be used in courts established by Parliament, including the Supreme Court of Canada

Section 22 of the Charter allows languages other than English & French to be used & enjoyed as well (ex. Northwest Territories passed laws so that Inuit or Dene persons can speak their native language when dealing with all gov’t institutions

Language Education Rights Other than in Quebec, citizens can have their children educated in French if any of the

following applies: Their first language is French They received their own primary education in Canada in French, or They have a child who is or did receive an education in French

Aboriginal Rights

Section 25 provides that the Charter does not abrogate (abolish or anul) or derogate (take away or detract) from existing culture, customs, traditions, languages and other rights or freedoms pertaining to aboriginal peoples

Doesn’t give new rights, but protects rights from Royal Proclamation of 1763 and those existing or acquired through land-claim agreements

Multi-Cultural Rights

Sections 27 protects the concept of multiculturalism in Canada