Unit 2 RIGHTS FREEDOMS DAY 1 Would the

Unit #2 RIGHTS & FREEDOMS DAY 1

� Would the Charter of Rights and Freedoms have any application in April’s complaint? � What is the difference between a right and a privilege?

Right vs Freedom � RIGHT �a legal, moral, or social entitlement �What we can expect �Ex. Right to be presumed innocent � FREEDOM �Ability to go about your business without interference from the government �Ex. Freedom of speech

Evolution of Canada’s Rights and Freedoms 1. CANADIAN BILL OF RIGHTS �Drafted in response to horrendous human rights abuses in WWII �Recognized many rights and freedoms �It was a federal statute �Problems: ○ Easily changed because it did not have authority over other statutes ○ Equality issues

Evolution of Canada’s Rights and Freedoms 2. CANADIAN CHARTER OF RIGHTS AND FREEDOMS �Included in Constitution Act, 1982 �Entrenched our rights ○ Rights and freedoms can only be changed by an amendment to the Constitution (so very difficult) �Enforced by the Supreme Court ○ Judges will strike down laws that violate the Charter �Problems: ○ Written too broadly? ?

Lets look at some of the sections of the Canadian Charter of Rights and Freedoms

Canadian Charter of Rights and Freedoms SECTION 1: REASONABLE LIMITS CLAUSE Rights and freedoms outlined in the Charter can be limited as long as the limits are reasonable (justified) � Rights are NOT absolute �

R v. Oakes In 1982 David Oakes was convicted of unlawful possession of narcotic for the purpose of trafficking � Appeal Oakes argued that s. 8 of the Narcotic Control Act, which placed the burden of proof on the accused, violated the presumption of innocence contained in s. 11(d) of the Charter. � Appeal court found that, s. 1 of the Charter, seasonable limitations were justified �

Oakes Test � Court agreed that “it may become necessary to limit rights & freedoms in certain circumstances. ” � They established 4 criteria for determine whether a right should be subject to limits.

Oakes Test � Is the reason for limiting the Charter important enough to override the person’s right? � Is the limit to the person’s right reasonably and logically connected to the objective of the legislation? � Is the person’s right limited as little as possible? � Does the severity of the limitation match the importance of the objective?

� If you answer _YES_ to all of the questions, then the limit on your right/freedom is JUSTIFIED. If you answer _NO_ to any of the questions, then the limit on your right/freedoms is _NOT justified.

R. I. D. E Program Use the OAKES Test to determine if it is lawful. � Under the R. I. D. E. program, the police are stopping and detaining motorists arbitrarily to investigate whether or not they might be committing a criminal offence. � Justice's of the Supreme Court agree that the RIDE program is unlawful as they violate your s. 9 Charter right, but s. 1 upholds the rights of the police to do this.

� In the charter package read Case 1 & answer the question

Canadian Charter of Rights and Freedoms SECTION 33: NOTWITHSTANDING CLAUSE � Allows the federal and provincial governments to pass laws that are exempt from section 2 (fundamental freedoms) and 7 -15 (legal & equality rights) in the Charter � Exemption lasts for 5 years, then must be renewed � Ex. Quebec Exemption Clause (Sept 2013)

In charter package read Case 2 & answer the following Who was Ford? questions: Ford was on of 5 retailers challenging the Bill � What was the issue with Bill 101 and her store? Business name was Les Lainages du Petit Mouton Enr, but sign said “Laine Wool” Bill 101 required all signs to be in French only � Why did the two courts rule Bill 101 infringed on the rights guaranteed in the Charter? Freedom of expression included the ability to express in the language of one’s choice. � How was the Quebec government able to apply a French only statute despite the courts’ rulings? By introducing Bill C-178, invoking the notwithstanding clause. Allowing the original law concerning French only sings was allowed to stand for at least five years. � The Quebec government after lengthy court battles decided to compromise in 1993. Why did the government do it in 1993 as compared to a different year? Because it was five years later, therefore they would have lost � Explain: “The current legislation is vague in the wording and therefore open to interpretation. ” Can allow for things to be taken in differently from person to person or case to case. �

Unit #2 RIGHTS & FREEDOMS DAY 2

Newspaper article- Naked Man � Is the man’s freedom of expression being violated? � What kind of impact would there be in society if the courts decide to strike down nudity laws? � How do the courts balance the individual’s rights with society’s rights?

Canadian Charter of Rights and Freedoms SECTION 2: FUNDAMENTAL FREEDOMS (a) - Freedom of Religion � You have the right to: Ø Entertain the religious beliefs you choose Ø Declare those beliefs openly without fear Ø Right not to have values imposed on us (ex. no longer say the Lord’s Prayer in school)

Canadian Charter of Rights and Freedoms SECTION 2: FUNDAMENTAL FREEDOMS (b) - Freedom of Expression � Free to think and believe what you want – express through writing, speech, painting, photography, etc. � Freedom of the press and other media � Freedom of Speech in Canada – Anti-Terrorist bill

Canadian Charter of Rights and Freedoms SECTION 2: FUNDAMENTAL FREEDOMS (c) - Freedom of Peaceful Assembly � Freedom to gather peacefully – ex: political demonstrations/friendly protests Students protest increase tuition fees – not so peacefully

Canadian Charter of Rights and Freedoms SECTION 2: FUNDAMENTAL FREEDOMS (d) – Freedom of Association � Freedom to connect with other people or groups – ex: unions, political parties

Freedom of Religion – Cases 3 -6

Case 3: R. v. Big M Drug Mart Ltd. (1985) Supreme Court of Canada Questions: � Explain why the Supreme Court of Canada unanimously agreed the Lord’s Day Act violated the Charter? It was a Christian based and infringed upon the freedom of religion � The government attempted to apply section 1 of the Charter – Reasonable Limits Clause – to justify the law. What were the lawyers for the government attempting to convey to the Supreme Court judges? They believed that everyone accepts the need and value of a universal day of rest, and it should just be on the day that traditionally been accepted by most Canadians.

Case 4: Iko Tyoke Questions: � Many could argue the request for cancellation of morning exercise is not justifiable since only one student out of the entire school claimed it infringed on the Freedom of Religion. What is your opinion about this statement? � The school offered an alternative. Was this sufficient to eliminate the infringement of the Freedom or Religion or did this simply open doors to a human rights discrimination violation? � Suppose this situation took place at a Catholic school. Discuss if this would be a different issue. � The Canadian National Anthem has been in controversy at different times. It is predominantly Christian in principle – “God keep our land…. . ” Most Canadians respect and honour the playing of the National Anthem but shouldn’t the National Anthem reflect the cultural diversity of our nation?

Case 5: Binhah - safety Questions: � Is this a reasonable limits application? On one hand, there is the freedom of religion and on the other right to be secured from danger. The company and the Safety Commission must consider the well-being of the employees. Do you think the dismissal is warranted and legal on a constitutional basis? � In Ontario, any bicycle rider under the age of 16 (or 18 without parental permission) must wear a helmet as prescribed by law. Some young Sikh boys wear turbans in accordance with their religion. Is this law an infringement of Religion? Apply the same concepts as used in #1. Explain: “This might be a discrimination issue for the Human Rights Commission. ”

Case 6: Sikhs in court Questions: � Does discrimination on the basis of religion exist in this situation? Use the reasonable limits clause to fully justify your answer. � Brainstorm at least 2 other places where a Sikh male may not be allowed to wear his kirpan.

Freedom of Expression

Case 8: R. v. Butler, (1992) 1 S. C. R. 452 Questions: � Do you believe that the legally obscene material distributed by Butler and others is harmful to society, particularly to women? Do you feel that the reasonable limits clause should apply? Explain. � Why are TV shows and movies allowed to convey murder and other horrible acts?

Freedom of peaceful assembly

Case example � In the 1990’s, people gathered to celebrate (protected under freedom of peaceful assembly) with other hockey fans (protected under freedom of association) a Vancouver Canucks’ win during the Stanley Cup hockey playoffs. However, when the assembly turned into a riot in 2011, the freedoms of others (such as those of shopkeepers whose windows were broken and of bystanders who felt a threat to their personal safety) were compromised. The police had to arrest some rioters who were then charged with breaking the law. Freedoms are guaranteed only to such reasonable limits as can be justified in a free and democratic society.

Case 12 - Convoy � Would freedom of peaceful assembly allow this action to be conducted legally or would section 1 apply in this case? Explain using specifics.

Freedom of Association Cases 13 & 14

Case 13: Canada (Attorney General) v Bedford, 2012 ONCA 186 Questions: � What two laws were struck down by the Ontario Court of Appeal and why? The word “prostitution” – applies to s. 210 of Criminal code & drivers and bodyguards would be legal but not pimps, who are known to exploit sex trade workers. � What law wasn’t struck down by the ONCA and why? Openly solicit customers on the street � What do you think will be the Supreme Court of Canada will rule on each of the three laws? Why?

Case 14: March 2001, Canada's Anti-Gang Law Questions: � In your own words explain Bill C-95. If you are in a gang and know of an indictable offence that occurred, you will be liable and serve a minimum sentence of 5 years in prison � What is the main intention of Bill C-95? To decrease illegal gang activity and discourage people from joining. � Critics argue although the intention of the bill is justifiable, it may infringe on the Freedom of Association. Bill C-95 assumes you are presumed guilty simply through association. This violates one of Canada’s most fundamental rights of being innocent until proven guilty. Do you think Bill C-95 is constitutional and the government has the right to limit a person’s freedom if the result may lead to a more secure place for others? Discuss.

Unit #2 RIGHTS & FREEDOMS DAY 3

Canadian Charter of Rights and Freedoms SECTION 3 -5: DEMOCRATIC RIGHTS 3 – Right to Vote � Right to vote in an election and run for office Ø Subject to reasonable restrictions such as age, mental capacity, residence, and registration 4 – Election � Opportunity to elect a new federal and provincial government every five years except under extraordinary circumstances – ex: war

In the running of the Election campaign Stephen Harper Conservative Tom Muclair Justin Trudeau NDP Liberal Elizabeth May Green Gilles Duceppe Bloc Quebecois

Canadian Charter of Rights and Freedoms SECTION 3 -5: DEMOCRATIC RIGHTS 5 – Parliament & Legislative Assemblies � Parliament and legislative assemblies must hold at least one session a year Ø Provides an opportunity for both elected members and the public to question government actions and policy

Canadian Charter of Rights and Freedoms SECTION 6: MOBILITY RIGHTS � Concerns the rights of Canadian citizens to move in and out of the country and between provinces �Ex. People are free to live here in Waterloo Region and move to anywhere in Canada

In 1991, Richard Sauve, who was serving a life sentence for first-degree murder, challenged the Canada Elections Act arguing that s. 51 c, which denied the right to vote to all inmates serving sentences, violated s. 3 (the right to vote) and s. 15 (equality rights) of the Charter. The Supreme Court needed to make a decision on this matter.

Prisoner’s Voting Debate � Form groups of 6 � Separate into two teams of 3 � Side 1 – Prisoners should have the ability to vote in elections � Side 2 – Prisoners should NOT have the ability to vote in elections

Unit #2 RIGHTS & FREEDOMS DAY 4

Canadian Charter of Rights and Freedoms SECTION 7 -13: LEGAL RIGHTS 7 – Life, Liberty, & Security of the Person � Life - Right to be alive, free from government torture and execution � Liberty –Free to act and choose as you want � Security – Protects mental state of the individual The life of abortion activist Henry Morgentaler

Assisted Suicide Issue in Canada Sue Rodriquez

Canadian Charter of Rights and Freedoms SECTION 7 -13: LEGAL RIGHTS 8 – Unreasonable Search & Seizure � Police must have a good reason for searching the person, home, or belongings of an accused � The search must be conducted fairly � Police can only search for what they have permission to search for

Canadian Charter of Rights and Freedoms SECTION 7 -13: LEGAL RIGHTS 9 – Arbitrary Detention or Imprisonment � People cannot be held for questioning, arrested, or kept in jail by the police without good reason � Arbitrary means randomly

Canadian Charter of Rights and Freedoms SECTION 7 -13: LEGAL RIGHTS 10 – Rights While Under Arrest or Detention � Right to be told why you are being arrested (while being arrested) � Right to be told that you may get the assistance of a lawyer – legal counsel is available free of charge if the accused cannot afford a lawyer

Canadian Charter of Rights and Freedoms SECTION 7 -13: LEGAL RIGHTS 11 – Rights When Charged with a Criminal Offence � Outlines several rules that protect anyone who has been charged with an offence Ø To be assumed innocent until proven guilty Ø To be tried in court within a reasonable amount of time Ø To not be forced to testify at your own trial Ø The right to trial by jury for serious charges

Canadian Charter of Rights and Freedoms SECTION 7 -13: LEGAL RIGHTS 12 – Cruel and Unusual Treatment or Punishment � Governments cannot treat or punish individuals in an unnecessarily harsh manner � Ex. Death penalty not legal here in Canada under s. 12 Ø In deciding what is “cruel” the court considers: Ø The gravity of the offence Ø The personal characteristics of the offender Ø The particular circumstances of the case

Canadian Charter of Rights and Freedoms SECTION 7 -13: LEGAL RIGHTS 13 – Rights of Witnesses in Court � Witnesses giving evidence in court cannot have testimony used against them � Anyone who is hearing impaired or cannot understand or speak the language used in court has the right to an interpreter