Law - Our rights and freedoms - key terms and key cases
Ontario Human Rights
All Ontario Human rights are based on the Universal Declaration of Human Rights. The Ontario Human Rights Code guarantees that people are not discriminated against in Ontario like at work, renting a house from a landlord, receiving goods, services or using facilities (like pools). If a law in Ontario goes against the Ontario Human Rights Code it can be challenged as discriminatory
what is an example of using s.33 of the Charter
An example of the override clause would be if the federal government passed a law that requires employees to dress a certain way when they work (no headwear) and then also says that it is invoking the override clause (section 33). This law may violate the freedom of religion for Sikh people (they wear turbans) but the government can do thisif they use section 33 when they pass the law
Caulder v BC
In Bc native pepole claimed tht they had legal title to thier ancestral land.Bc ruled aginst them and it went t the supreme court where thye ruled in favour of the first nations. There is now a proces for negotiating land claims
What is the Universal Declaration of Human Rights
It is an international document that states basic rights and fundamental freedoms to which all human beings are entitled. It is not a treaty does not directly create legal obligations for countries but is an expression of the fundamental values which are shared by all members of the international community. It: 1. recognises that 'the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world'. 2. declares that human rights are universal - to be enjoyed by all people, no matter who they are or where they live. 3. It includes civil and political rights, like the right to life, liberty, free speech and privacy. It also includes economic, social and cultural rights, like the right to social security, health and education.
What is the Reasonable limits clause in the Charter
It is section 1 - this section says that the rights and freedoms set out in the Charter are not absolute. Section 1 allows the government to legally limit a person's Charter rights and freedoms. A person's rights and freedoms can be limited by: 1) reasonable limits, 2) the limit must be prescribed by law, 3) the limit must be demonstrably justified in a free and democratic society
What section of the Charter is the reasonable limits section
It is set out in section 1 of the Charter.
What was the R. v. Keegstra case about
Keegstra, a teacher made anti-semitic statements while teaching. He was charged with promoting hatred under the Criminal Code. The section he was charged under said that no person will be convicted of promoting hatred if that person can establish that the statements they were making were true. He argued that this law breached his right to freedom of expression under s.2 of the Charter and also created a reverse onus on him and therefore breached his right to be presumed innocent until proven guilty under s. 11(d) of the Charter. The Supreme Court ruled that the law that had a reverse onus was justifiable under s.1 of the Charter.
What were the facts and what happened in the R. v Oakes case?
Mr. Oakes was charged with trafficking of drugs under the Narcotics Act. The section he was charged under said that when a person is found in possession of drugs he shall be given the opportunity of establishing that they were not in possession for the purpose of trafficking in the drug (meaning that this section put a burden on him to show he was innocent). Oakes argued that the section created a "reverse onus" and therefore violated his right under section 11(d) of the Charter to be presumed innocent until proven guilty. The Supreme Court of Canada agreed with Oakes and said that the reverse onus breaks the Charter right of being "innocent until proven guilty". The case is important because in it the Supreme Court set out the test (4 criteria) the government has to meet in all cases to justify the limits put on a charter right or freedom in a law it passes.
If a government uses the override provision in section 33 does it take away the Charter right or freedom completely?
No all it does it protect a particular law from being struck down by the courts
In what case did the Supreme Court of Canada rule that a law that had a reverse onus was justifiable under s.1 of the Charter. It was the case about promoting hatred that said no person will be convicted of promoting hatred if that person can establish that the statements they were making were true
R. v. Keegstra
What court case established the 4 criteria that the government must rely on to raise section 1 of the Charter in order for it be able to override a Charter right or freedom
R. v. Oakes
what are the Mobility rights in the Charter
Section 6 protects the right of Canadians to move from place to place. Section 6(1) ensures that all Canadian citizens are free to come and go as they please. Extradition laws place some limits on these rights. These laws state that persons in Canada who face criminal charges or punishment in another country may be ordered to return to that country. Section 6(2) gives all Canadian citizens and permanent residents the right to move to, and live in, any province or territory. They may also look for work or set up a business there. Section 6(3) makes clear that provinces may decide to give social benefits, such as welfare, only to persons who have lived in the province for a certain period of time. They may also pass employment laws that require workers to have the necessary qualifications to practice their profession or trade. Section 6(4) allows a province that has an employment rate below the national average to create programs that favour its own residents.are set out in section 6 of the Charter. YOU CAN MOVE FROM ONE PROVINCE TO ANOTHER
Which court decided the Little Sisters Case?
Supreme Court of Canada (it was the court of final appeal)
Which court decided the R. v. Oakes Case?
Supreme Court of Canada (it was the court of final appeal)
What are the 4 criteria established in R. v. Oakes for a government to show in order for a law to override a Charter right or freedom?
The 4 criteria a government has to meet to override a Charter right (called the Oakes test) are that it has to show that: 1. the reason for limiting the Charter right must be to enforce an important government objective (eg. the objective was to stop drug trafficking); 2. the limit on the Charter right must be reasonable and logically connected to the government's objective (eg. requiring a reverse onus to prove they are not trafficking is logically connected to stopping drug trafficking), 3. the right must be limited as little as possible. In other words the restriction made by the law on the right/freedom must be minimal (eg. is there something else the government could have done rather than making the person prove they were not trafficking; and 4. the more severe the limitation is on the right, the more important the objective must be.
Canadian Human Rights
The Canadian Human Rights Act guarantees that all Canadians receive fair and equal treatment (are not discriminated against) from all institutions under federal control: like airlines, banks, tv and radio stations
Which court or tribunal made the decision in the CUPE 1998 case
The Canadian Human Rights Tribunal
What is Keegstra important
The Supreme Court ruled that a reverse onus section of a law was justifiable under s.1 of the Charter.
what is the Charter of Rights and Freedoms
The part of Canada's constitution that guarantees basic rights and freedoms that individuals possess vis a vis governments. The Charter also sets out the remedies that are available if the rights and freedoms are infringed
why was the reverse onus in Oakes, that s.8 of the Narcotics Act, was contrary to the Charter
The reverse onus was contrary to the right of a person who is charged with an offence to be presumed innocent until proven guilty. It puts the onus on Oakes (the person charged, who is in possession of drugs) to prove that he was not committing the offence of trafficking (trafficking in drugs).
Section 15
These are guaranteed equality rights
What are the Aboriginal rights in the Charter
These are set out in sections 25 of the Charter and section 35 in the Constitution Act, 1982. Section 25 says that the Charter rights cannot interfere with any aboriginal rights, the treaty rights of aboriginal peoples or with any land claims. NOTE: It does not specifically say that they have a right to self government
What is Section 11 of the Charter
These are the 9 legal rights of individuals under the Charter. These apply if a person is charged with an offence. Three of the 9 of these are: 1) to be informed without unreasonable delay of the the specific offence; 2) to be tried within a reasonable time and 3) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal... 6 more
Delgamulikw vs bc
They claimed that there ancsetral lands shuldbelong to them. Nothing was decided but awarness was rasied baout naive title.
Why is the case of R. v. Oakes important?
This case set out the guidelines for interpreting s.1 of the Charter and determining the "reasonable limits" that may be placed on the Charter's rights and freedoms. In other words the court set out the test (4 criteria) a government has to meet in order to justify the limits put on a charter right or freedom in a law it passes.
What is the importance of the case Little Sisters (Little Sisters) Books and Art Emporium?
This case was a challenge under s.2 of the Canadian Charter to a section of the Customs Act that permitted officials to confiscate and destroy obscene materials. Little Sisters was a gay and lesbian literature bookseller that imported books and other materials into Canada from other countries. Little Sisters made a claim to the court that their books were unfairly being seized by customs officials. The Customs Act required them to prove the books were not obscene. The Supreme Court of Canada found that the law violated section 2 (freedom of expression) but it was justified (was a reasonable limit) under section 1. This meant that the law was saved but the way the law was implemented by customs officials was discriminatory (Little sisters was being harassed) and should be remedied. The Court changed the burden so that it was on the government (Customs) to prove that the material was obscene and not the importer.
what does Read down mean and when is it used
This is when courts are enforcing a violation of a Charter right or freedom. They can rule (decide) that the law is generally applicable, but a specific part of the law is invalid and removed
What is the CUPE, 1998 case about
This was a human rights case about pay equity that was heard at the Canadian Human Rights Tribunal. The Canadian Human Rights Code guarantees equal pay at the the same establishment for workers who are performing work of equal value. CUPE (a union) argued that women flight attendant wages should be comparable to pilots and technicians, who were mostly men. The Tribunal found that there was no discrimination between men and women in their pay, because they were represented by different unions and had different collective agreements and were not working at the same establishment
Section 25
aboringinal rights
What is Prejudice
is a preconceived opinion of a person based on the person's belonging to a certain group
what is section 33 of the Charter
is known as the "notwithstanding or override clause" of the Charter. It allows a government to pass a law that violates a right or freedom set out in the Charter and court decisions concerning that right or freedom
What are Immigrants
means a person who comes to live permanently in a foreign country
what is Pay equity
means equal payment for work evaluated as equal in worth
What are Stereotypes
means judging, or forming an opinion of one person of a group and applying that judgment to all members of that group
What is Freedom of religion
means people are free to practice or not to practice religion in Canada without fear of reprisal or attack
What does Accomodation mean
means removing a barrier or changing a policy to avoid discrimination
What is Freedom of Association
means that people are free to attend public demonstrations including the right of striking workers to picket outside their place of work. NOTE: the gathering must be peaceful or it may be found to be an "unlawful assembly" which is an offence under the Criminal Code of Canada
What is Freedom of expression
means that you have the freedom in all forms of communication and expression. NOTE: the expression must not be to incite hatred. Inciting hatred is an offence under the Criminal Code of Canada
What is in Section 2 of the Charter
sets out the 4 fundamental freedoms protected in the Charter. They are freedoms of: 1. conscience and religion 2. thought belief, opinion and expression including freedom of the press and media 3. peaceful assembly 4. association
What Court decided Keegstra
the Supreme Court of Canada
What is the not withstanding clause
the clause in the Charter of Rights and Freedoms that allows the province and territories to create laws that operate in spite of certain contradictions with the Charter
what is unintentional discrimination
these are actions that appear to be neutral but that have the effect of discriminating against most members of a group
What are Women's rights Know the persons case
these are rights that promote a position of legal and social equality of women with men. In early Canada women did not have the same rights as men and were not treated equally. Near the end of the 19th century attitudes changed and small groups of feminists fought for suffrage (the right to vote). By end of WW2 women had gained the right to vote in federal elections. Canadian Bill of Rights made it illegal to discriminate based on gender. Charter of Rights made equal rights for women a constitutional right. Women still face issues of discrimination: pay equity, sexual harassment and employment equity. 1929 persons case
what is intentional discrimination
this is treatment of others that is unfair (on the basis or prejudice or stereotype) and on purpose
what is the onus on the government under section 1
to prove on a balance of probabilities that: 1. the limitation was prescribed by law, 2. the law is attuned to the values of accessibility and intelligibility, and 3. the law is justified in a free and democratic society
what is Discrimination
treating individuals unfairly or differently because of characteristics such as face, sex, religion, age, disability or sexual orientation