The Charter of Rights and Freedoms - A Brief History

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HUMAN RIGHTS AND EQUITY SERVICES NEWSLETTER                                                                               April 2005

      The Charter of Rights and Freedoms – A Brief History
                                                                         What Happens When A Right or Freedom is
A    s part of his effort to “repatriate” the Canadian Constitution in
     the late 1970s and early ‘80s, then Prime Minister Pierre Elliott
Trudeau decided that the existing Canadian Bill of Rights needed to
                                                                         Charter rights and freedoms may be breached by agents of the
be revamped and strengthened. The result was the creation of the         government in two major ways:
Canadian Charter of Rights and Freedoms (commonly known as
“the Charter”).                                                          • by passing legislation which has the purpose or the effect of
                                                                           unreasonably limiting a right or freedom; or
                                              The Charter came           • by taking an action that unreasonably infringes on the rights or
                                              into force on April          freedoms of an individual.
                                              17, 1982 and
                                              changed, for better        In the first instance, the passing of legislation that breaches the
                                              or worse, the face of      Charter, the remedy is that the impugned law is either struck down
                                              Canadian law (and          or amended by the court to comply with the Charter.
                                              Canadian society as
                                              a whole) forever.          The second instance, the taking of an action that breaches the
                                              Three years later, on      Charter, most often involves criminal or quasi-criminal situations.
                                              April 17, 1985,            The most common is where a police officer is argued to have
                                              Section 15 of the          breached the rights of a person accused of a crime in some way – by
                                              Charter, which             subjecting her to unreasonable search or seizure, by failing to
                                              guarantees equality        provide timely access to legal advice or by conscripting the person
                                              rights, came into          unreasonably to provide evidence against herself, etc. In such cases,
                                              force – its                the remedy is often the exclusion from the person’s trial of evidence
implementation had been delayed to allow the federal and                 that was obtained by the police as a result of the Charter breach. See
provincial governments time to bring their own laws into                 the seminal cases of R. v. Therens [1985] and R. v. Collins [1987] on
compliance with the Charter.                                             the exclusion of evidence.

What Is the Charter?                                                     The Charter has been in force for 23 years now and, so far, more
The Charter is part of the Constitution of Canada, the law from          than 300 Canadian laws have been struck down or amended by
which all other laws spring and against which all other laws are         courts in order to comply with the Charter. The number of criminal
judged. If a given piece of legislation fails to comply with the         or quasi-criminal cases affected by Charter arguments is beyond
terms of the Constitution and the Charter, that piece of                 count.
legislation is of no force and effect.
                                                                          F . Y . I . FOR YOUR INFORMATION
The Charter sets out those rights and freedoms that Canada, as a
society, believes are fundamental to the workings of a free and
democratic society. These rights and freedoms include the
                                                                         The Charter does not apply to Universities.
                                                                         It is important to remember that the Charter applies
• freedom of expression, religion, and association                       only to interactions between the government (at all
• the right to life, liberty and the security of the person              levels) and individuals. It does not apply to interactions between
• the right to vote                                                      one individual and another, nor between non-governmental
• the right to live anywhere in Canada                                   institutions or organisations and individuals – that is the purview of
• the right to be free from unreasonable search and seizure              Human Rights Codes (see the case known as Dolphin Delivery
• the right to be treated equally under the law.                         [1986]). As a result, to date no court has ruled that the Charter
The Charter also includes protections for the rights of Aboriginal       applies to Universities in their interactions with students, staff or
persons in Canada and for minority (French) languages.                   faculty.

    learn, work and live in a climate of equality and respect
Are there limits to the                                                              Religious Holidays
Charter’s Rights and Freedoms?                                                              April
Charter rights are not absolute. Section 1 of the document states
clearly that the rights and freedoms set out therein are “subject only                 Baha’i
to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society”. The case of R. v. Oakes                   9                  Jalál
[1986] set out the process by which the courts determine whether or                    21 - May 2         Ridvan
not a legal limit is demonstrably justified. Courts have been wary of                  28                 Jamál
limiting Charter rights and freedoms.                                                  29                 Ninth Day of Rivdan

6     Charter Decisions That Have
      Changed Canada                                                                   13-14              Saka New Year

   Singh v. Minister of Employment and Immigration [1985] was
a significant early decision because, in it, the Supreme Court of          Z           Christianity
                                                                                       24      Palm Sunday (Eastern)
Canada found that the Charter applies to every person in Canada,
                                                                                       28      Holy Thursday (Eastern)
including citizens, those seeking status and even illegal immigrants.
                                                                                       29      Holy Friday (Eastern)
As a result, the government must respect the basic rights of all
persons in the country, regardless of their citizenship status.                        Hinduism
   Big M Drugmart [1985] was the first case in which the Supreme
Court of Canada recognised that Canadian society is largely                            9       Bikarami Samvat 2062
constructed along the tenets of the Christian religion. In this case,                          (New Year’s Day)
the Court struck down a law (The Lord’s Day Act) that required                         13      Vaisakhi
businesses to close on Sundays.                                                                (First Day of the Solar Year)
   R. v. Morgentaler [1988] was decided on the grounds of                              17      Ramanavami
protecting the mother’s right to life, liberty and the security of the
person. In this case, the Court decided that a woman’s right to life,
liberty and security of the person included the right to obtain an                     20      Mawlid al-Nabiy
   R. v. Seaboyer [1991] created huge controversy because, in it, the                  Judaism
Supreme Court struck down the “Rape Shield Law”, a law designed                        24 - May 1         Pesah (Passover)
to ensure that the previous sexual history of the complainant was
not used against her in a sexual assault trial. The Court decided that                 Sikhism
the law represented an unreasonable interference with the accused’s                    14      Vaisakhi
right to a fair trial and right to give full answer and defence to
charges against him.
   Andrews v. Law Society of B.C. [1989] extended the protection
of section 15 of the Charter (equality rights) to groups that were
“similarly situated” to those listed in the section and, further, that
                                                                           Upcoming HRES Events:
prohibited discrimination could involve unintentional, systemic or
structural discrimination.                                                                The “3Rs”
   Vriend v. Alberta [1998] saw the Court extend the protections of
a provincial human rights code to include protection against
                                                                              Rights, Responsibilities, Respect:
discrimination on the basis of sexual orientation. This is one major      Preventing Harassment & Discrimination
decision in the movement towards ensuring equal rights for                         Tuesday, April 26, 10 a.m.-Noon
members of the GLBT community.                                               John Hodgins Engineering Bldg., Room A114
   R. v. Sparrow [1990] was a key decision with regard to the
protection of Aboriginal treaty rights under section 35 of the Charter.
Unfortunately, it was also not a very clear decision. It apparently
                                                                                        What’s in A Word?
endorses the government’s power to unilaterally extinguish                          Wednesday, May 18, 1 - 3 p.m.
Aboriginal treaty rights (provided the government shows a clear             Michale DeGroote School of Business, Room 227
intention to do so) while also stating that governments hold a              To Pre-Register and for more information, please call:
fiduciary relationship to Aboriginal Peoples and must ensure that                         Elaine Hay @ Ext. 27581
Aboriginal interests are a high priority in any decision that might                    Email:
affect Aboriginal communities.

                   Human Rights and Equity Ser vices • McMaster Univer sity Student Centre Room 212
                     Phone: 905.525.9140 ext.23641 • •
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