when was the canadian charter of rights and freedoms written
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Section 34 of the Canadian Charter of Rights and Freedoms is the last section of Canada's Charter of Rights, which is entrenched in the Constitution Act, 1982. Section 34 provides guidance for the legal citation of the Charter. The section has been interpreted by Canadian writers, who have analyzed both its intention and its meaning. Because the section affirms the name of the Charter and thus entrenches it in the Constitution Act, it came into focus in 1994 when a Member of Parliament (MP) proposed to change the name of the Charter. Text Under the heading "Citation," the section reads: Function Section 34, as part of the Constitution Act, 1982, came into force on April 17, 1982. According to the government of Canada, section 34's function "simply" relates to citation. The section clarifies that the first 34 sections of the Constitution Act, 1982 may be collectively called the "Canadian Charter of Rights and Freedoms," which is an "official name." This would be the name of the English version. The French version of section 34 states "Titre de la présente partie: Charte canadienne des droits et libertés." In 1982, constitutional scholar Peter Hogg suggested that the section also clarifies the size and scope of the Charter. Only section 34 and the sections that come before it compose the Charter. The next sections of the Constitution Act, 1982, including section 35 (which affirms Aboriginal rights) and section 36 (which affirms equalization payments), are thus not Charter rights. This is significant, since section 1 of the Constitution Act, 1982 allows for limits on Charter rights, so it cannot apply to sections 35 or 36. However, this also means that a "judicial remedy" under section 24 of the Act is not available for sections 35 or 36, since section 24 refers only to the Charter. Discussion Canadian poet George Elliott Clarke once analyzed section 34, calling it "bland legalese." He wrote it was "reassuring" because it was dull, signalling neither fear nor excitement. Thus, it seemed to imply the Charter of Rights was not a radical constitutional change, despite the fact that it was potentially revolutionary for a constitutional monarchy. In considering the name Canadian Charter of Rights and Freedoms, Clarke felt the first word, "Canadian," hinted at Canadian nationalism. He then compared this to the French Declaration of the Rights of Man and of the Citizen and the United States Bill of Rights, saying that those documents were written by men who had just emerged from conflict and still remembered it, and thus Canada could be duller. However, he noted there was some drama in the Charter in that it was written when there was a threat of Quebec separatism, and section 27 (multiculturalism), section 25 (Aboriginal rights), and section 15(2) (affirmative action) of the Charter could change the country. In 1994, the House of Commons of Canada debated changing the name of the Canadian Charter of Rights and Freedoms to the Canadian Charter of Rights, Freedoms and Responsibilities. As Parliamentary Secretary Russell
Section 34 of the Canadian Charter of Rights and Freedoms
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Section 2 of the Canadian Charter of Rights and Freedoms ("Charter") is the section of the Constitution of Canada that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association. Section 1 of the Charter permits Parliament or the provincial legislatures to enact laws that place certain kinds of limited restrictions on the freedoms listed under section 2. Additionally, these freedoms can be temporarily invalidated by section 33, the "notwithstanding clause", of the Charter. As a part of the Charter and of the larger Constitution Act, 1982, section 2 took legal effect on April 17, 1982. However, many of its rights have roots in Canada in the 1960 Canadian Bill of Rights (although this law was of limited effectiveness), and in traditions under a theorized Implied Bill of Rights. Many of these exemptions, such as freedom of expression, have also been at the centre of federalistic disputes. Text Under the heading of "Fundamental Freedoms" the section states: Freedom of religion Background According to Beverley McLachlin, freedom of religion in Canada may have originated as early as 1759, when French Canadian Roman Catholics were allowed rights of worship by their British conquerors; this was later reconfirmed in 1774 in the Quebec Act. Later the Constitution Act, 1867 provided for denominational school rights (these are reaffirmed by section 29 of the Charter). Discussions of church-state relations also took place in the Guibord case of 1874. In 1955, the Supreme Court ruled in Chaput v Romain, regarding Jehovah's Witnesses, that different religion have rights, based upon tradition and the rule of law (at the time no statutes formed the basis for this argument). Religious freedom was later included in the Canadian Bill of Rights. However, its effectiveness was limited. When Sunday closing laws compelling respect for the Christian Sabbath were challenged in R v Robertson and Rosetanni, Justice Ritchie of the Supreme Court found that non-Christians merely lost money when denied rights to work on Sunday and were otherwise free to believe in and observe their religions. Definition Freedom of religion under section 2(a) of the Charter was first seriously considered by the Supreme Court in R v Big M Drug Mart Ltd. In that case, Chief Justice Brian Dickson wrote that this freedom at least includes freedom of religious speech, including "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination." Freedom of religion would also prohibit imposing religious requirements. The immediate consequence of section 2, in this case, was the abolishment of
Section 2 of the Canadian Charter of Rights and Freedoms
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Section 23 of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada that guarantees minority language educational rights to French-speaking communities outside Quebec, and, to a lesser extent, English-speaking minorities in Quebec. The section may be particularly notable, in that some scholars believe that section 23 "was the only part of the Charter with which Pierre Trudeau was truly concerned." Trudeau was the prime minister who fought for the inclusion of the Charter of Rights in the Constitution of Canada in 1982. Section 23(1)(b), or section 23 as a whole, are also known as the "Canada clause." Text Under the heading "Minority Language Educational Rights," the section reads, Section 23 must be read in conjunction with Section 59 of the Constitution Act, 1982: History As a strong federalist, Trudeau had fought to ensure linguistic rights in the constitution to promote national unity. Section 23 (1)(b) had its origins in a unanimous agreement between the provincial leaders and Trudeau reached in 1978 in St. Andrews, New Brunswick, in which children of citizens could receive schooling in their language. When this idea was brought to the Charter in the 1980s, Trudeau also successfully secured agreement from provincial leaders that section 23 could not be nullified by the section 33 notwithstanding clause. When the government of Quebec had passed the Charter of the French Language in 1977, only parents who had gone to English schools in Quebec could have their children educated in English. Concerns for the erosion of the educational rights of English-speaking Quebeckers thus led to section 23(1)(b) being written so that that part of the Quebec law would become unconstitutional. This portion of the Charter of the French Language was indeed struck down by the courts in Attorney General of Quebec v. Quebec Protestant School Boards (1984). The verdict prompted the passing of Bill 86 in 1993 which amended the Charter of the French Language, stating that any child of a Canadian citizen whose parent or sibling had received English-medium education in Canada (rather than Quebec specifically) could attend English-medium schools. While there was decreased minority language education in Quebec at the time when the Charter was adopted, several other provinces (where English Canadians were the majority) had no French language schools at all. In contrast, in 2005, all provinces had minority language education schools. In 1986, 152,225 French Canadian students outside of Quebec were going to French-language schools in accordance with section 23, and in 2001 the number was 149,042. There have been some roadblocks to minority-language education since the Charter came into effect, such as a need for more French-speaking teachers and decreased enrolment in English-language education in rural Quebec, as well as challenges from both francophone and anglophone minority parents that education of equal quality is not being provided by their provincial government. The relative lack of French-language post secondary education opportunities (colleges and universities) outside of Quebec influences the choice of some French Canadian students to switch to English language
Section 23 of the Canadian Charter of Rights and Freedoms
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In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the legal system ought fairly to operate", per R v Malmo-Levine. These principles may stipulate basic procedural rights afforded to anyone facing an adjudicative process or procedure that affects fundamental rights and freedoms, and certain substantive standards related to the rule of law that regulate the actions of the state (e.g., the rule against unclear or vague laws). The degree of protection dictated by these standards and procedural rights vary in accordance with the precise context, involving a contextual analysis of the affected person's interests. In other words, the more a person's rights or interests are adversely affected, the more procedural or substantive protections must be afforded to that person in order to respect the principles of fundamental justice. A legislative or administrative framework that respects the principles of fundamental justice, as such, must be fundamentally fair to the person affected, but does not necessarily have to strike the "right balance" between individual and societal interests in general. The term is used in the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms and also the New Zealand Bill of Rights Act 1990. Fundamental justice, although closely associated with, is not to be confused with the concepts of due process, natural justice, and Wednesbury unreasonableness. Canadian Bill of Rights In written law, the term fundamental justice can be traced back at least to 1960, when the Canadian Bill of Rights was brought into force by the Diefenbaker government. Specifically, section 2(e) of the Canadian Bill of Rights stated that everyone has "the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations." According to the legal scholar Walter Tarnopolsky, the wording of the clause sparked some controversy among those drafting the Bill. Some wanted the words "natural justice" in the place of "fundamental justice," as "natural justice" was indeed a more common phrase with judges and authors. "Fundamental justice" was a more obscure alternative with these figures (other such alternatives include "universal justice"). Still, "fundamental justice" was chosen, and in the case Duke v. The Queen (1972), it was ruled that fundamental justice was, for the purposes of this case, merely equivalent to natural justice. The author, Chief Justice Fauteux, did say that he was not trying "to formulate any final definition." Unlike the Canadian Charter of Rights and Freedoms, which was added to the Constitution of Canada in 1982, the Bill of Rights is not a constitutional instrument but rather an ordinary statute. Still, the Canadian Bill of Rights remains in effect, and its guarantee of the "determination" of one's "rights and obligations" through fundamental justice is not precisely duplicated in the Charter. While the term "fundamental justice" does appear in section 7 of the
Fundamental justice
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Section 33 of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause ( or ), sometimes referred to as the override power, and it allows Parliament or provincial legislatures to temporarily override sections 2 and 7–15 of the Charter. Text The section states: Function The Parliament of Canada, a provincial legislature or a territorial legislature may declare that one of its laws or part of a law applies temporarily ("notwithstanding") countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's 14 jurisdictions may suspend the core rights of the Charter. However, the rights to be overridden must be either a "fundamental right" guaranteed by Section 2 (such as freedom of expression, religion, and association), a "legal right" guaranteed by Sections 7–14 (such as rights to liberty and freedom from search and seizures and cruel and unusual punishment) or a Section 15 "equality right". Other rights such as section 6 mobility rights, democratic rights, and language rights are inviolable. Such a declaration ends after five years or a lesser time specified in the clause, although the legislature may re-enact the clause any number of times. The rationale behind having a five-year expiry date is that it is also the maximum amount of time the Parliament or legislature may sit before an election must be called. Therefore, if the people so desire, they have the right to elect new representatives who could choose to repeal the law or let the declaration expire. (The provisions of the Charter that deal with elections and democratic representation (§§3–5) are not among those that can be overridden with the notwithstanding clause (§§2,7–15).) The notwithstanding clause reflects the hybrid character of Canadian political institutions. In effect, it protects the British tradition of parliamentary supremacy under the American-style system of written constitutional rights and strong courts introduced in 1982. Former Prime Minister Jean Chrétien also described it as a tool that could guard against a Supreme Court ruling legalizing hate speech and child pornography as freedom of expression. History The idea for the clause was proposed by Peter Lougheed as suggested by Merv Leitch. The clause was a compromise reached during the debate over the new constitution in the early 1980s. Among the provinces' major complaints about the Charter was that it shifted power from elected officers to the judiciary, giving the courts the final word. Section 33, along with the limitations clause, in section 1, was intended to give provincial legislators more leverage to pass law. Prime Minister Pierre Trudeau at first strongly objected to the clause, but eventually consented to its inclusion under pressure from the provincial premiers. The clause was included as part of what is known as "The Kitchen Accord". At the end of a
Section 33 of the Canadian Charter of Rights and Freedoms
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Reference Re Public Service Employee Relations Act (Alta) [1987] 1 S.C.R. 313, commonly referred to as the Alberta Reference, was a leading opinion of the Supreme Court of Canada on the right to freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. The Court held that section 2(d) did not include the right to strike. In 2015, Alberta Reference was overruled, with the Court recognizing a right to strike in the Charter. Background Section 2 of the Canadian Charter of Rights and Freedoms entered into force in 1982. The Alberta Reference provided the Supreme Court of Canada with an opportunity to interpret the scope of protection afforded to collective bargaining and strikes under the Charter. The province of Alberta referred a reference question to the Alberta Court of Appeal, which was decided in favour of the Government of Alberta. The reference questions concerned Alberta labour relations legislation affecting public service employees, firefighters, hospital employees, and police officers. The laws restricted the right to strike: any impasse in collective bargaining had to be referred to compulsory arbitration. As well, the laws designated certain factors that had to be considered in said arbitration, and limited the scope of issues that were arbitrable. The appellants, various public sector labour unions, were granted leave to appeal to the Supreme Court of Canada. Opinion of the Court Justice McIntyre argued that freedom of association is an individual right, intended to protect collective activities that are already protected by other constitutional rights. Thus, activities that are prohibited individually are also forbidden collectively. As such, a trade union does not have a Charter right to strike incident to collective bargaining. The plurality opinion (written by Justice Le Dain) spanned only three paragraphs, and agreed with Justice McIntyre's disposition. The plurality referred to the many types of associations that the Charter is intended to protect, and the importance of freedom of association, but also emphasized the importance of judicial restraint. Chief Justice Dickson, in dissent, also agreed with the characterization of the freedom, but argued that the right is not associated with particular activities but rather is "a freedom of persons to join and act with others in common pursuits". This case involved a "double-swing decision" where Chief Justice Dickson was assigned the reasons for the Court at conference but lost the signatures to Justice McIntyre, who then lost them to Justice Le Dain. Subsequent developments In 2001, the Supreme Court decided Dunmore v Ontario (Attorney General), which rejected a strictly individualized approach to section 2(d) reflected in the majority reasons of the Alberta Reference. The SCC in Dunmore acknowledged that section 2(d) reflects collective, not just individual, rights, and found that substantial interference with the ability of workers to engage in "collective action" would infringe section 2(d). The Alberta Reference was explicitly overturned in Saskatchewan Federation of Labour v Saskatchewan, with a majority of the SCC recognizing a constitutionally-protected right to strike under section 2(d) of the Charter. The majority decision in
Reference Re Public Service Employee Relations Act (Alta)
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Canada v Schmidt, [1987] 1 S.C.R. 500, is a decision by the Supreme Court of Canada on the applicability of fundamental justice under the Canadian Charter of Rights and Freedoms on extradition. While fundamental justice in Canada included a variety of legal protections, the Court found that in considering the punishments one might face when extradited to another country, only those that "shock the conscience" would breach fundamental justice. Background The defendant was a Canadian citizen, Helen Susan Schmidt, who, along with her son Charles Gress and his friend Paul Hildebrand, had kidnapped a young girl in Cleveland, Ohio. Schmidt claimed to believe that the girl was her granddaughter and that the girl's biological mother kept her in a home ill-suited for a child. Helen Schmidt then lived with the girl for two years in New York City before her arrest in 1982. She was charged with kidnapping, a federal offence in the United States, and with child-stealing, a state offence in Ohio. The same year she was acquitted of kidnapping, but she had fled to Canada before her state trial commenced. She was captured in Ontario and was prepared to be extradited. Being charged for child-stealing after having been acquitted of kidnapping would not violate the double jeopardy clause in the Fifth Amendment to the United States Constitution, as the states offences are considered separately from federal offences by the US Supreme Court, Schmidt fought the extradition as a violation of double jeopardy rights under section 11(h) of the Canadian Charter of Rights and Freedoms. Decision The majority decision was written by Justice Gerard La Forest. After the Supreme Court found that it had jurisdiction to review the case, it considered whether extradition law aside from Charter law was violated. Under extradition law, a hearing in Canada would ascertain if there was sufficient evidence of a crime that could be criminal in Canada as well as in the other nation. It was argued that the extradition hearing should guard against double jeopardy since that was an essential right in Canadian law. However, the hearing is not a trial, and the Supreme Court decided that arguments about double jeopardy are a defence that would be more suited for a trial. The case Re Burley (1865) was cited to demonstrate that Canada should trust the receiving country to carry out the trial. Moving on to consider section 11(h) of the Charter, the Court considered the argument that the crimes of kidnapping and child-stealing were too similar. The Court noted that while the Canadian government's decisions in extradition are bound by the Charter under section 32, the actions of a foreign government are not, which was relevant to section 11(h) since its rights are held against trials and the Canadian government would not be conducting the trial. The Court went on to argue that many other rights under section 11 would also be irrelevant to extradition. For example, section 11 guarantees the presumption of innocence, but in practice, Canada already extradites persons
Canada v Schmidt
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The preamble to the Canadian Charter of Rights and Freedoms is the introductory sentence to the Constitution of Canada's Charter of Rights and Constitution Act, 1982. In full, it reads, "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law". Interpretation Writing in 1982, when the Charter came into force, constitutional scholar Peter Hogg noted that these words, being a preamble are limited in some direct applications of the law but can help to determine how other sections of the Charter should be read and applied. In this particular case, however, Hogg expressed concern as to how much help this preamble could be, noting the term "rule of law" is "notoriously vague" and that the mention of the "supremacy of God" can be considered in some contexts as contrary to section 2 of the Charter, which protects freedom of conscience, which Hogg felt would include a right to atheism. In R v Morgentaler (1988), Justice Bertha Wilson defined freedom of conscience as protecting "conscientious beliefs which are not religiously motivated", and balanced the preamble out with the statement that "the values entrenched in the Charter are those which characterize a free and democratic society". In considering the legal implications of the preamble in the 1999 case R v Sharpe, the British Columbia Court of Appeal referred to it as a "dead letter" which the BC justices had "no authority to breathe life" into. The Supreme Court did consider the preamble's mention of the rule of law in Reference Re Manitoba Language Rights (1985), noting that striking down most of Manitoba's laws as unconstitutional (because they were not enacted in both languages as required by the Manitoba Act) might be a threat to the rule of law. This would render Manitoba nearly lawless, and the principle of the rule of law was defined as meaning no one is above the law and that laws must exist, as they uphold society's values. The court therefore confirmed the Charter preamble's importance by stating, "The constitutional status of the rule of law is beyond question." Consequently, some time was given before the unconstitutional laws would expire. In Re BC Motor Vehicle Act (1985), the Supreme Court also linked the rule of law to the principles of fundamental justice, as illustrated by sections 8 to 14 of the Charter. The court noted the importance of these rights to the justice system, stating that sections 8 to 14 "have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in 'the dignity and worth of the human person' (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on "the rule of law" (preamble to the Canadian Charter of Rights and Freedoms)." Alternate interpretations Some theologians and philosophers have questioned whether the preamble refers to a specific God (the Christian God or Jewish God) or to a more abstract concept that promotes civic virtue (i.e., civil religion). For
Preamble to the Canadian Charter of Rights and Freedoms
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Canadian privacy law is derived from the common law, statutes of the Parliament of Canada and the various provincial legislatures, and the Canadian Charter of Rights and Freedoms. Perhaps ironically, Canada's legal conceptualization of privacy, along with most modern legal Western conceptions of privacy, can be traced back to Warren and Brandeis’s "The Right to Privacy" published in the Harvard Law Review in 1890, Holvast states "Almost all authors on privacy start the discussion with the famous article 'The Right to Privacy' of Samuel Warren and Louis Brandeis". Evolution of Canadian privacy statutes Canadian privacy law has evolved over time into what it is today. The first instance of a formal law came when, in 1977, the Canadian government introduced data protection provisions into the Canadian Human Rights Act. In 1982, the Canadian Charter of Rights and Freedoms outlined that everyone has "the right to life, liberty and security of the person" and "the right to be free from unreasonable search or seizure", but did not directly mention the concept of privacy. In 1983, the federal Privacy Act regulated how federal government collects, uses and discloses personal information. Canadians' constitutional right to privacy was further confirmed in the 1984 Supreme Court case, Hunter v. Southam. In this case, Section 8 of the Canadian Charter of Rights and Freedoms (1982) was found "to protect individuals from unjustified state intrusions upon their privacy" and the court stated such Charter rights should be interpreted broadly. Later, in a 1988 Supreme Court case, the right to privacy was established as "an essential component of individual freedom". The court report from R. v. Dyment states, "From the earliest stage of Charter interpretation, this Court has made it clear that the rights it guarantees [including privacy rights] must be interpreted generously, and not in a narrow or legalistic fashion". Throughout the late 1990s and 2000s, privacy legislation placed restrictions on the collection, use and disclosure of information by provincial and territorial governments and by companies and institutions in the private sector. Governing relations with public sector institutions Privacy Act The Privacy Act, passed in 1983 by the Parliament of Canada, regulates how federal government institutions collect, use and disclose personal information. It also provides individuals with a right of access to information held about them by the federal government, and a right to request correction of any erroneous information. The Act established the office of the Privacy Commissioner of Canada, who is an Officer of Parliament. The responsibilities of the Privacy Commissioner includes supervising the application of the Act itself. Under the Act, the Privacy Commissioner has powers to audit federal government institutions to ensure their compliance with the act, and is obliged to investigate complaints by individuals about breaches of the act. The Act and its equivalent legislation in most provinces are the expression of internationally accepted principles known as "fair information practices." As a last resort, the Privacy Commissioner of Canada does have the "power of embarrassment", which can be used in the hopes
Canadian privacy law
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Section 27 of the Canadian Charter of Rights and Freedoms is a section of the Charter that, as part of a range of provisions within the section 25 to section 31 bloc, helps determine how rights in other sections of the Charter should be interpreted and applied by the courts. Section 27 officially recognized multiculturalism as a Canadian value. Text Section 27 provides: Background and drafting In Canada, multicultural policy had been adopted in 1971 following the Royal Commission on Bilingualism and Biculturalism, a government body set up in response to the grievances of Canada's French-speaking minority (concentrated in the province of Quebec). The report of the Commission advocated that the Canadian government should recognize Canada as a bilingual and bicultural society and adopt policies to preserve this character. Bicultural was opposed by non-French ethnic minorities communities, particularly the large Ukrainian Canadian and other European communities. In 1973 the government formed the Canadian Consultative Council on Multiculturalism (CCCM) to consult with ethnocultural community leaders. The communities themselves organized an umbrella group in 1980 to lobby the government called the Canadian Ethnocultural Council, spearheaded by Dr. Leonardo Leone of the National Congress of Italian Canadians. These groups lobbied during the constitutional debates for the inclusion of what eventually became Section 27. Lawyer and future mayor of Edmonton and leader of the Alberta Liberal Party Laurence Decore was the head of the CCCM from 1980 to 1983 and is sometimes credited as principal drafter of Section 27. Purpose and application When the Charter was enacted in 1982, constitutional scholar Peter Hogg observed that this section did not actually contain a right; namely, it did not say that Canadians have a right to multiculturalism. The section was instead meant to guide the interpretation of the Charter to respect Canada's multiculturalism. Hogg also remarked that it was difficult to see how this could have a large impact on the reading of the Charter, and thus section 27 could be "more of a rhetorical flourish than an operative provision." Section 27 can be seen as a declaration of a national value of multiculturalism. In 2002, polls found 86% of Canadians approved of this section. Impact Freedom of religion Section 27 has been referred to by the courts. The Court of Appeal for Ontario in Videoflicks Ltd. et al. v. R. (1984) argued that section 27 should receive "significance" from the courts, and that the section could reinforce freedom of religion (section 2). As this court put it, if a law limits the free exercise of religion, then the law is also of no use in promoting multiculturalism, since it affects a "part of one's culture which is religiously based." Hence, section 27 demands that governments must respect and tolerate various religions, even if this means that some cultural groups may be exempted from certain things the government compels the people to do, even if this proves to place "inconveniences" on the government. This line of thinking was reaffirmed by the Supreme Court of Canada in
Section 27 of the Canadian Charter of Rights and Freedoms
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Women currently make up 14.8% of the Canadian Armed Forces, and are eligible to serve in all occupational specialties. The last occupational ban for females in the military was in 2001. In February 2018 the total representation of women who served in combat arms (crewman, artillery, artilleryman, infantryman, infantry, engineer, combat engineer, and armoured) was reported as 4.3%. No women currently serve in combat specialties within special operations forces. Females who obtain officer status are mainly concentrated in the personnel and nursing fields. Historical overview of women in the Canadian Armed Forces Women have played a role in the Canadian Forces for over 100 years. During World War II, women were restricted to non-combative positions such as nursing, cooking, communication, logistics, and administration. In 1971, following the recommendations from the Royal Commission on the Status of Women, the Canadian Armed Forces sought to expand the range of positions women could fill. Due to this expansion, women became employable as vehicle drivers and mechanics, aircraft mechanics, air-traffic controllers, military police, and firefighters. When the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms came into force in 1985, the Canadian Armed Forces’ policies were amended to allow women to serve at sea, in army service battalions, field ambulance units, and in most air squadrons. By 1987, women were permitted to occupy direct combat posts on the ground and at sea. While equality legislation was being passed, the defence minister conducted many trials on Service Women in Non- Traditional Environments and Roles, known as the SWINTER Trials. The minister sought to examine women's performance at positions typically reserved for males, as well as how the mixed gender group performed as a whole, in order to ascertain whether operative efficiency was undermined. Efforts towards equality Achieving equal opportunity through legislation Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms came into force in 1982. There have been no challenges to the equality rights guarantees of Section 15 of the Charter or commenced an action against the Canadian Armed Forces on gender discrimination charges. The Canadian Human Rights Act The Canadian Human Rights Act is considered quasi-constitutional legislation, and applies to federal government agencies and Crown corporations including the Canadian Armed Forces. It acts to prohibit discrimination on specified grounds, such as race, sex, age, religion, and in the context of employment and publicly available services. Achieving Equal Opportunity Through Litigation In Gauthier v. Canadian Armed Forces, three women brought claims before a Canadian Human Rights Tribunal alleging that the Canadian Armed Forces had refused them employment on the basis of their gender, and that this was inconsistent with the Human Rights Act. The Canadian Armed Forces conceded that their policies were discriminatory, but relied on section 15(1)(a) to argue that they should be granted an exception based on a bona fide occupational requirement. They claimed that including women in certain specialized roles could undermine “operational effectiveness” and pose too much risk. Isabelle Gauthier, a claimant working
Gender discrimination in the Canadian Military
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Section 14 of the Canadian Charter of Rights and Freedoms is the last section under the "Legal rights" heading in the Charter. It provides anyone in a court the right to an interpreter if the person does not speak the language being used or is deaf. Text The section states: Before the Charter was enacted in 1982, the right to an interpreter in a trial existed under the common law, because it was believed to be necessary for natural justice. The right was incorporated into the Canadian Bill of Rights in 1960. Section 2(g) of this Act read that a person has a right to "the assistance of an interpreter in any proceedings in which he is involved or in which he is a party or a witness, before a court, commission, board or other tribunal, if he does not understand or speak the language in which such proceedings are conducted." Unlike the Charter, the Bill of Rights was a statute and not part of the Constitution of Canada. The Bill of Rights also did not guarantee this right to the deaf community. The language right was included in an early draft of the Charter, and the rights belonging to the deaf later appeared in April 1981. The Supreme Court of Canada has said the right also has a basis in Canada's multiculturalism. Canadians' "multicultural heritage" is recognized in section 27 of the Charter. Interpretation The rights implied by section 14 were defined by the Supreme Court in the case R. v. Tran (1994), which involved an interpreter for a defendant who spoke Vietnamese in an English language trial. The Supreme Court found that section 14 requires the translation to be of consistent quality ("continuity") and unbiased accuracy. However, not everything in the trial must be translated if it is not truly important to the defendant's rights. The finding on the required quality came from the purpose of the right, which, based in natural justice and multiculturalism, emphasized that a defendant must fully understand the trial. Natural justice means a defendant can respond to accusations. The Court also stated that the quality of the translation must not be so high that the defendant is actually more informed than those who speak the court's language. People asking for an interpreter must demonstrate an inability to understand the language of the court and ask for section 14 rights to be fulfilled. However, Tran established that this burden "will not normally be an onerous step," and some courts with a high volume of cases involving multicultural parties will routinely provide interpreters upon request without much if any inquiry as to need. The court itself is also responsible for satisfying the right, and sometimes a section 14 request does not have to be made by a defendant in order for an interpreter to be provided under section 14. Notes External links Canlii.org section 14 digest Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter
Section 14 of the Canadian Charter of Rights and Freedoms
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The Constitution Act, 1982 () is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of patriating the constitution, introducing several amendments to the British North America Act, 1867, including re-naming it the Constitution Act, 1867. In addition to patriating the Constitution, the Constitution Act, 1982 enacted the Canadian Charter of Rights and Freedoms; guaranteed rights of the Aboriginal peoples of Canada; entrenched provincial jurisdiction over natural resources; provided for future constitutional conferences; and set out the procedures for amending the Constitution in the future. This process was necessary because, after the Statute of Westminster, 1931, Canada allowed the British Parliament to retain the power to amend Canada's constitution, until Canadian governments could agree on an all-in-Canada amending formula. In 1981, following substantial agreement on a new amending formula, the Parliament of Canada requested that the Parliament of the United Kingdom give up its power to amend the Constitution of Canada. The enactment of the Canada Act 1982 by the British Parliament in March 1982 confirmed the Patriation of the Constitution and transferred to Canada the power of amending its own Constitution. On April 17, 1982, Queen Elizabeth II and Prime Minister Pierre Trudeau, as well as the Minister of Justice, Jean Chrétien, and André Ouellet, the Registrar General, signed the Proclamation which brought the Constitution Act, 1982 into force. The proclamation confirmed that Canada had formally assumed authority over its constitution, the final step to full sovereignty. , the Government of Quebec has never formally approved of the enactment of the act, though the Supreme Court concluded that Quebec's formal consent was never necessary and 15 years after ratification the government of Quebec "passed a resolution authorizing an amendment." Nonetheless, the lack of formal approval has remained a persistent political issue in Quebec. The Meech Lake and Charlottetown Accords were designed to secure approval from Quebec, but both efforts failed to do so. Part I: Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms is the part I of the Constitution Act, 1982. The Charter is a bill of rights to protect certain political rights, legal rights and human rights of people in Canada from the policies and actions of all levels of government. An additional goal of the Charter is to unify Canadians around a set of principles that embody those rights. The Charter was preceded by the Canadian Bill of Rights, which was created by the government of John Diefenbaker in 1960. However, the Bill of Rights was only a federal statute and was limited in its effectiveness because it is not directly applicable to provincial laws. This motivated some within government to establish unambiguously-constitutional-level bill of rights for all Canadians. The movement for human rights and freedoms that emerged after World War II also wanted to entrench the principles enunciated in the Universal Declaration of Human Rights. The Charter was drafted by the federal government with consultations with the provincial governments in the years leading
Constitution Act, 1982
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Section 18 of the Canadian Charter of Rights and Freedoms is one of the provisions of the Constitution that addresses rights relating to Canada's two official languages, English and French. Like section 133 of the Constitution Act, 1867, section 18 requires that all statutes and other records made by the Parliament of Canada must be available in both official languages. Section 133 places a similar obligation on the legislature of Quebec, and this is reaffirmed by section 21 of the Charter. Section 18 of the Charter places a similar obligation on the legislature of New Brunswick. New Brunswick is the only officially bilingual province under section 16 of the Charter. Text Section 18 reads, Application Justice Michel Bastarache and fellow-authors wrote of section 18 that it repeats section 133 in necessitating Parliament's statutes being kept in both official languages, and that section 18 "adds that both versions are equally authoritative." They compared this clause to sections 56 and 57 of the Constitution Act, 1982, which state that English and French versions of the Constitution are equal. Earlier, however, court decisions suggested the equal status of English and French versions was implicit in section 133. Bastarache and his fellow-authors also argued that section 18 implies bilingualism is to be used in the making of the law, and state that failure to satisfy section 18 means any laws are unconstitutional. Challenges Section 18 causes a number of challenges in law making. Someone translating a law from one official language to another will have to ensure that the two versions do not contradict one another. Hence, the federal government has tried to ensure laws are written in both English and French to begin with, as opposed to the usual method in which laws written in English would then be translated to French. If the two versions of a law contradict each other anyway, the equality under section 18 causes courts to interpret them by means of "cross-interpretation," which means the courts interpret both while referencing the other. An interpretation that most plausibly could apply to both of the two contradictory versions will be adopted. Additionally, the purpose of the law may be considered, so that the version most geared toward the purpose will be applied. In some cases, one version of a law that is more explicit than the other will receive priority. Interpretation In the 1986 Supreme Court case Société des Acadiens v. Association of Parents, Justice Jean Beetz commented on section 18. He called it one of the few language rights in the Charter, along with section 20, that is meant to promote discussion that everyone is able to understand. Section 20 addresses public services, while Beetz noted section 18 "provides for bilingualism at the legislative level." The New Brunswick Court of Appeal considered subsection 18(2), which requires bilingual statutes and records to be kept by the provincial legislature, for the first time in the 2001 case Charlebois v. Mowat. The court extended subsection 18(2)'s requirement to municipal laws, with reference
Section 18 of the Canadian Charter of Rights and Freedoms
4708216
Section 29 of the Canadian Charter of Rights and Freedoms specifically addresses rights regarding denominational schools and separate schools. Section 29 is not the source of these rights but instead reaffirms the pre-existing special rights belonging to Roman Catholics and Protestants, despite freedom of religion and religious equality under sections 2 and 15 of the Charter. Such rights may include financial support from the provincial governments. In the case Mahe v. Alberta (1990), the Supreme Court of Canada also had to reconcile denominational school rights with minority language educational rights under section 23 of the Charter. Text The section reads: Purpose The Constitution of Canada contains a number of denominational school rights. They usually belong to Catholics and Protestants wherever they form the minority population of the relevant province. The former Chief Justice of Canada Beverley McLachlin once referred to this as an early form of freedom of religion in Canada. Section 93 of the Constitution Act, 1867 awards jurisdiction over education to the provincial governments, with a few exceptions. Catholics have denominational school rights in Ontario. Both Catholics and Protestants had these rights in Quebec, until abrogated by the Constitution Amendment, 1997 (Québec). Quebec was and is predominantly Catholic (though the effects this has had on the province's politics have changed over the years; see Quiet Revolution). Section 17 of the Alberta Act, 1905 also guarantees denominational school rights for Catholics in Alberta. While the rights for Catholics and Protestants seem to contradict Charter values of equality, section 29 clarifies the privileges cannot be challenged on Charter grounds. It was inserted because the authors of the Constitution Act, 1982 did not want to be held responsible for challenging the old system. As noted in the Supreme Court case Reference re Bill 30, An Act to Amend the Education Act (Ont.) [1987] 1 SCR 1148 (SCC), this clarification is really the only function of section 29. Section 29 does not itself shield the rights of denominational schools from the Charter, since the rights are themselves a part of the Constitution and thus cannot be unconstitutional or subject to Charter review. This line of thinking was confirmed by the Supreme Court in Gosselin (Tutor of) v. Quebec (Attorney General) (2005). Interpretation In the case Adler v. Ontario (1996) religious freedoms under sections 2 and 15 of the Charter were used to argue that lack of government funding for Jewish Canadian schools and certain Christian schools in Ontario was unconstitutional, since by contrast Catholic schools received government money. The majority of the Supreme Court, however, dismissed the argument, noting section 93's importance as an agreement made between the founders of the nation to make Confederation possible. Since it was a political deal and not based upon the principle of freedom, section 2 of the Charter could not extend section 93 rights to other religions. Moreover, to find that section 2 could extend denominational school rights would contradict the specificity of section 93, and section 29 indicates such a contradiction cannot exist and
Section 29 of the Canadian Charter of Rights and Freedoms
2966495
Section 30 of the Canadian Charter of Rights and Freedoms is a section that, like other provisions within the section 25 to section 31 block, provides a guide as to how Charter rights should be interpreted and applied by Canadian courts. It addresses how the Charter applies in the territories of Canada. In 1982, when it became law, these were the Northwest Territories and the Yukon Territory. The Yukon Territory is now called Yukon, and Nunavut was created from the eastern Northwest Territories to become Canada's third territory in 1999. Text The section reads, Function As the government of Canada puts it on one of its websites, this means that "[t]he Charter applies to the Yukon, the Northwest Territories and Nunavut in exactly the same way as it does to the provinces." Hence, section 30 is particularly important in regard to section 3, 4, 5, 6 and 23 rights. Since section 6 refers to rights to "move to and take up residence in any province" and to "pursue the gaining of a livelihood in any province," section 30 is applied so that section 6 also guarantees rights to move to and pursue work in the territories of Canada. Likewise, section 30 extends section 23's guarantee of minority language educational rights for minority language groups in the provinces to minority language groups in the territories. Section 30 also guarantees that territorial governments are bound by sections 3 to 5, which themselves only explicitly refer to provincial governments. Hence, those in the territories will have the right to vote or run in territorial elections (section 3), territorial governments cannot operate for longer than 5 years without an election (section 4), and territorial governments must sit at least once a year (section 5). The other rights in the other sections of the Charter are also valid and enforceable in the territories. The authority of the territorial governments is derived from the Parliament of Canada. Paragraph 32(1)(a) provides that the Charter applies "to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories". Read together, section 30 and paragraph 32(1)(b) provide that the Charter applies "to the legislature and government of each province [and territory] in respect of all matters within the authority of the legislature of each province [and territory]". The content of section 30 dates back to the original draft of the Charter, which was published in October 1980. Judicial interpretation In the case Fédération Franco-ténoise v. Canada (C.A.) (2001), the Federal Court of Appeal discussed section 30 when it rejected the government of the Northwest Territories' claim that the territory now had legal power and independence similar to those of the provinces. (The purpose of this claim was to avoid the obligations of providing official language rights under the Charter, which the federal government has to do but no provinces besides New Brunswick have to do). The territorial government based its theory in Parliament's
Section 30 of the Canadian Charter of Rights and Freedoms
224445
The implied bill of rights () is a theory in Canadian jurisprudence which proposed that as a consequence of the British North America Act, certain important civil liberties could not be abrogated by the government. The theory was never adopted in a majority decision of the Supreme Court of Canada, and was rejected by the court in 1978. The enactment and interpretation of the statutory Bill of Rights, and later the constitutional Charter of Rights and Freedoms, provided alternative formulations of the limits applicable to civil liberties. Theory The concept of an implied bill of rights develops out of Canadian federalism. When provincial legislation intrudes deeply into fundamental freedoms of speech, religion, association or assembly, the provincial legislature is creating criminal legislation, which under the distribution of powers is reserved exclusively to the Parliament of Canada by section 91(27) of the Constitution Act, 1867. Provinces cannot intrude in this area; if they do, such legislation is void and has no effect. Since provincial prohibitions touching on the fundamental freedoms of speech, religion, assembly and association were declared unconstitutional by the courts, and in light of the expansive obiters in the leading cases, the writers were able to claim that there was a bill of rights implicit in the Constitution. Some constitutional scholars focus on the Preamble to the Constitution Act, 1867 as providing the underlying reasons for an implied bill of rights. The relevant part of the preamble reads: Some authors have taken the view that the words "similar in principle" means that in Canada there must be a parliamentary system of government, acting under the influence of public opinion, of a free press, with free speech. Thus, legislation which destroyed the citizen's ability to debate, to assemble or to associate freely would be contrary to Canada's democratic parliamentary system of government. This provides an additional underpinning for the claim of an implied bill of rights in Canada's Constitution. Invoked more often before the Canadian Charter of Rights and Freedoms was enacted, it is nonetheless important when questions of parliamentary supremacy and the override power come into play. History Jurisprudence before 1982 The principal cases describing the extent of the rights are considered to include: Reference Re Alberta Statutes Boucher v the King Winner v SMT (Eastern) Ltd Saumur v Quebec Chaput v Romain Switzman v Elbling Roncarelli v Duplessis In Alberta Statutes, Duff CJ held that: Cannon J agreed, and also stated: While Duff's and Cannon's dicta focused on the competence of the provincial legislatures, Abbott J later stated in Switzman that the same restrictions applied to the Parliament of Canada as well, declaring that "Parliament itself could not abrogate this right of discussion and debate." The concept was expanded in Winner, which held that citizens were free to move across provincial borders and live wherever they chose to. Roncarelli later held that public officials were subject to the rule of law, and therefore could neither suspend nor dispense it arbitrarily, but must act within their official powers. Post-Charter
Implied bill of rights
2455283
Section 6 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects the mobility rights of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice of entering and exiting Canada, and moving within its boundaries. The section is subject to the section 1 Oakes test, but cannot be nullified by the notwithstanding clause. Along with the language rights in the Charter (sections 16–23), section 6 was meant to protect Canadian unity. Text Under the heading "Mobility Rights", the section reads, Background Before the adoption of the Charter in 1982, mobility rights had existed by virtue of section 91 of the Constitution Act, 1867, which gave the federal government full jurisdiction over citizenship. Citizens were free to move across provincial borders and live wherever they chose to. Only the federal government could limit this right. This implied right was recognized by the Supreme Court in Winner v. S.M.T. (Eastern) Limited, where Rand J. observed: Aside from this, section 121 of the Constitution Act, 1867 allows for goods to be freely moved from province to province. Before the patriation of the Constitution in 1982 the governments considered extending this section to allow mobility rights for individuals. However, today the two sections are considered to be geared toward separate purposes. Section 121 remains concerned with keeping Canada economically united, and section 6 is primarily concerned with an individual's freedom of movement. The Supreme Court has compared section 6 to section 2(a) of the 1960 Canadian Bill of Rights, which bars "the arbitrary detention, imprisonment or exile of any person." However, section 6 expands on this right to also protect rights to leave and move within Canada. Purpose Along with the language rights in the Charter (sections 16–23), section 6 was meant to protect Canadian unity. French Canadians, who have been at the centre of unity debates, are able to travel throughout all Canada and receive government and educational services in their own language. Hence, they are not confined to Quebec (the only province where they form the majority and where most of their population is based), which would polarize the country along regional lines. According to the Supreme Court in Canadian Egg Marketing Agency v. Richardson (1998), section 6 is also "rooted in a concern with human rights." It allows for individual independence and thus dignity. This contrasts with implied mobility rights under the Constitution Act, 1867. Section 6 also grants Canadians economic rights, but only insofar as one has equal rights to pursue work. The safeguards against discrimination in subsection 6(3) shows mobility rights are "largely predicated on the right to equal treatment." This was connected with mobility rights in the Universal Declaration of Human Rights, which, under article 2, are guaranteed "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Dissenting in Canadian Egg Marketing Agency
Section 6 of the Canadian Charter of Rights and Freedoms
31212388
The passage of the Canadian Charter of Rights and Freedoms in 1982 allowed for the provision of challenging the constitutionality of laws governing prostitution law in Canada in addition to interpretative case law. Other legal proceedings have dealt with ultra vires issues (whether a jurisdiction, such as a Provincial Government or municipality, has the powers to legislate on the matter). In 2013, three provisions of the current law were overturned by the Supreme Court of Canada, with a twelve-month stay of effect. In June 2014, the Government introduced amending legislation in response. Constitutional law 20th century Sections 193, 195 (213) The new formulations of section 213 found themselves under challenge in the lower courts within a year, with conflicting results (; ). Nova Scotia's Appeal Court ruled the legislation violated the guarantee of freedom of expression in the Charter of Rights and Freedoms, by constraining communication in relation to legal activity (R. v. Skinner (1987), 35 C.C.C. (3d) 203). The Alberta Court of Appeal disagreed, holding that infringement of freedom of expression was a justifiable limitation as no “clear and convincing” alternative was available for dealing with the nuisance of street prostitution (R. v. Jahelka (1987), 79 A.R. 44). The Manitoba Court of Appeal upheld section 195.1(1)(c) on the grounds that there was no prima facie case of freedom of expression (Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1987] 6 W.W.R. 289). When referred to the Supreme Court, it upheld the sections (Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123])Chief Justice Dickson for the majority (Madam Justice Wilson and Madam Justice L'Heureux‑Dubé dissenting), agreed that freedom of expression was restricted by what was now 213(1)(c) it did not infringe or deny the freedom of association guaranteed by section 2(d) of the Charter. He also held that it did not infringe the right to be treated fairly when life, liberty and security are affected by governmental action, as guaranteed by section 7 of the Charter. The reference to the court also included the bawdy house provisions which were held to not infringe the guarantee of freedom of expression provided for by section 2(b) of the Charter. Finally the impugned infringement of the freedom of expression guaranteed by section 2(b) of the Charter was justifiable under section 1 of the Charter as being a reasonable limit on a protected right. The justification was set out in three stages: The court must first characterize the objective of the law (a remedy for solicitation in public places and the eradication of social nuisance from the public display of the sale of sex). This was constructed as restricted to taking prostitution off the streets and out of public view. In this respect, Dickson disagreed with the opinion of another justice that the legislative objective addressed the broader questions of the exploitation, degradation and subordination of women. The court must assess the proportionality of the legislation to the objectives; in particular any infringement of rights must be
Prostitution law in Canada
4303730
Société des Acadiens v Association of Parents is a Supreme Court of Canada decision on minority language rights under section 19(2) of the Canadian Charter of Rights and Freedoms. The majority of the Court held that in civil cases in the New Brunswick courts, the parties have the right to use either French or English in all submissions and pleadings. However, they do not have a right to have the matter heard by a judge who understands them in the language they choose to speak. It is sufficient if there is simultaneous translation. In addition to the majority decision, two other justices of the Court held that the parties did have the right to be heard and understood by the judge in the language of their choice, but on the facts of the case, that standard was met. Decision Justice Beetz, writing for the majority, held that the language rights of section 19(2) were different from most other rights in the Charter as they were the result of a political compromise and so must be read restrictively. The right to be tried in court in French does not even imply a right to an interpreter. The only right to be understood would be provided by fundamental justice and sections 7 and 14 of the Charter rather than language rights. Aftermath The decision inspired criticism. Professors Leslie Green and Denise Réaume call it "troubling," noting the division of the Charter between rights to be read conservatively and liberally was not specific and so other rights besides the language rights were at risk of being conservatively read. Moreover, they questioned the meaning of conservative readings and said that even with supposed generous readings of the Charter, it is expected that courts are not making law. Green also argued that when it comes to diminishing rights due to compromise and politics, This decision was eventually reconsidered in R v Beaulac, [1999] 1 S.C.R. 768 where the Court rejected the Beetz interpretation in favour of the case's minority decision of Dickson and Wilson. References External links full text from LexUM case summary at mapleleafweb.com Supreme Court of Canada cases Canadian Charter of Rights and Freedoms case law Bilingualism in Canada 1986 in Canadian case law Language case law
Société des Acadiens v Association of Parents
3997774
Section 21 of the Canadian Charter of Rights and Freedoms is one of several sections of the Charter relating to the official languages of Canada. The official languages, under section 16 of the Charter, are English and French. Sections 16 to 20 guarantee a number of rights in regard to the use of these languages in the federal and New Brunswick courts and other government institutions. Thus, section 21 clarifies that language rights regarding English and French in the Constitution of Canada, outside the Charter, remain valid and are not limited by the language rights within the Charter. Text In full, it reads, Function Section 21 thus reaffirms language rights in the Constitution in respect to the provinces of Quebec and Manitoba. Although neither of these provinces are officially bilingual, there are constitutional rights regarding the use of English and French in those provinces that are not duplicated in the Charter. Specifically, section 133 of the Constitution Act, 1867 guarantees that anyone in the Quebec legislature (now known as the National Assembly of Quebec) may speak in either language, and that the records of the National Assembly must be kept in both languages. Furthermore, bilingualism is allowed in Quebec courts. The same rights are guaranteed in respect to the federal government under section 133, but these are repeated in section 17, section 18 and section 19 of the Charter. The Manitoba Act, which created the province of Manitoba in 1870 and is considered part of the Constitution of Canada, contains similar language rights. Section 23 of that Act states that everyone may speak in English or French in the legislature and in Manitoba courts, and that the records of the legislature must be kept in both languages. These rights, too, are not duplicated by the Charter but are reaffirmed by section 21 of the Charter. Comparisons to other Charter sections Whereas section 16 can be used to guarantee rights to those working in government offices to use either French or English, it has been noted that the rights referred to in section 21 do not. Section 21 can be better compared to some of the sections under the heading "General" (sections 25–31). This is because it is "negative in form," not guaranteeing rights but protecting pre-existing ones. Like section 21, section 29 protects rights (in this case denominational school rights) that appear elsewhere in the Constitution. Section 25 refers to Aboriginal rights and section 26 refers to other rights not in the Charter, although unlike section 21 these sections recognize rights outside the Constitution. References Canadian Charter of Rights and Freedoms Bilingualism in Canada Language policy in Canada Language legislation
Section 21 of the Canadian Charter of Rights and Freedoms
4503327
Montréal (City of) v 2952-1366 Québec Inc, [2005] 3 S.C.R. 141, 2005 SCC 62 is a leading Supreme Court of Canada decision on freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. The Court held that a strip club has no constitutional right to broadcast music into public streets in order to attract customers. The decision stated that location of the expression was a factor in considering if there was a violation. Background In 1996, the owner of a Montreal strip club on Ste‑Catherine Street was charged for violating a Montreal by-law which prohibited "noise produced by sound equipment". The owner challenged the charge on the grounds that the municipal law was a violation of his freedom of expression under section 2(b) of the Charter. Both the Quebec Superior Court and the Quebec Court of Appeal agreed that the law violated the freedom of expression and could not be saved under section 1 of the Charter. The following issues were put to the Supreme Court: Does the municipality have the power to enact the law? Does the by-law Infringe Section 2(b) of the Canadian Charter? In a six to one decision the Court found that the by-law was valid, that it violated the freedom of expression, but was saved under section 1. Opinion of the Court Chief Justice McLachlin and Justice Deschamps wrote the decision for the majority. In their decision they examined the scope of the freedom of expression and added that the location of the expression was relevant to a finding of a violation. In the current situation, there was a violation. The violation was found to be justified under section 1. They held that the purpose of controlling noise pollution was a sufficiently important purpose and the means available were reasonable. See also List of Supreme Court of Canada cases (McLachlin Court) External links Text of the Court of Appeal decision Canadian Charter of Rights and Freedoms case law Supreme Court of Canada cases Canadian freedom of expression case law 2005 in Canadian case law 2005 in the environment History of Montreal
Montréal (City of) v 2952-1366 Québec Inc
4529532
Gosselin (Tutor of) v Quebec (AG), 2005 SCC 15, [2005] 1 SCR 238 is a leading case of the Supreme Court of Canada on the constitutional protection of minority language rights under section 23 of the Canadian Charter of Rights and Freedoms. The case was part of a trilogy of minority language rights cases including Solski (Tutor of) v Quebec (AG), 2005 SCC 14 and Okwuobi v Lester B Pearson School Board; Casimir v Quebec (AG); Zorrilla v Quebec (AG), 2005 SCC 16. A number of French-speaking families who wanted their children educated in English but did not qualify under the Charter of the French Language for English schooling challenged the French Charter as a violation of their equality rights under sections 10 and 12 of the Quebec Charter of Human Rights and Freedoms. The Court rejected the claim. It held that the parents were not protected under the minority language rights provision in section 23 of the Canadian Charter. The Court also found that the equality right cannot be used to invalidate other rights under the Constitution; consequently there was no violation. See also List of Supreme Court of Canada cases (McLachlin Court) External links MathTowne Tutoring Canadian Charter of Rights and Freedoms case law Supreme Court of Canada cases Minority schools Bilingualism in Canada 2005 in Canadian case law Quebec language policy Language case law
Gosselin (Tutor of) v Quebec (AG)
36616789
R v Cook, [1998] 2 SCR 597, is a leading Charter decision of the Supreme Court of Canada. The Court held that Canadian police located in the United States were still subject to the Charter when interrogating a suspect for a murder in Canada. Background Deltonia Cook was arrested by US police in Louisiana at the request of the Royal Canadian Mounted Police. Initially upon arrest he was read his Miranda rights by the US police officers. He requested access to a lawyer but the police never followed through with the request. When the Canadian police arrived they questioned him but it was not until 20 minutes into the interrogation that they informed him of his right to retain and instruct counsel under section 10(b) of the Charter. At trial the Crown sought to admit as evidence parts of the statements Cook made in the interrogation. Cook challenged the evidence as a violation of his rights under section 10(b). Reasons of the Court The court held that acts of any Canadian police force performing duties outside of Canada are subject to the Charter. In this particular case, the court found that there was a violation of the accused's right to counsel and right to silence. These violations were flagrant and the evidence would not have been otherwise been discovered thus rendering the trial unfair. Consequently, the evidence of Mr. Cook's statement was excluded. Justices L'Heureux-Dubé and McLachlin dissented, stating that the Charter did not apply, and that the police were working as part of an American investigation and were acting under their authority. External links CanLII decision Canadian Charter of Rights and Freedoms case law Supreme Court of Canada cases 1998 in Canadian case law Canadian criminal case law
R v Cook
4428802
Devine v Quebec (AG), [1988] 2 S.C.R. 790 is a leading Supreme Court of Canada decision on the constitutional protection of minority language rights. Background Allan Singer was a Montreal printer who mostly served anglophone clientele. For over 30 years, his store front had a sign advertising his store that was written in English only. He was charged under the Charter of the French Language for having an English sign. Singer and several others brought an action to strike down provisions of the French Language Charter and the Regulation respecting the language of commerce and business, which required commercial signs to be in French only, as being laws that were ultra vires the province, and in violation of his freedom of expression under section 2(b) of the Canadian Charter and section 3 of the Quebec Charter, right to equality under 15(1) of the Canadian Charter, and his right against discrimination under section 10 of the Quebec Charter. Issues The issues before the Supreme Court were: whether the Language Charter was valid provincial law whether the provisions prohibiting English signs violated the right to freedom of expression under section 2(b) of the Canadian Charter and if so, could it be saved under section 1 of the Canadian Charter. Judgment of the Court In a unanimous decision, the Supreme Court held that the Language Charter concerned a valid provincial matter but it violated Singer's freedom of expression under section 2(b) of the Canadian Charter as it prohibited the use of English. The Court rejected Singer's argument that the law restricted mobility as protected under the Charter. The law only established conditions for doing business but did not restrict anyone's comings or goings. On the federalism issue, the Court rejected Singer's argument that the law constituted Criminal law under the Constitution Act, 1867. Though there was a prohibition and a penalty, the Act as a whole it constituted a regulatory scheme directed as the linguistic mode of certain commercial activities, and did not resemble any traditional criminal matters based on morality or public order. See also List of Supreme Court of Canada cases (Dickson Court) Notes sometimes called Allan Singer Ltd. v. Quebec Attorney General External links Article critical of the decision "The implications of accommodation", Policy Options, May 1990 Canadian freedom of expression case law Canadian Charter of Rights and Freedoms case law Supreme Court of Canada cases Bilingualism in Canada 1988 in Canadian case law Quebec language policy Language case law Language conflict in Canada
Devine v Quebec (AG)
2039116
Chaoulli v Quebec (AG) [2005] 1 S.C.R. 791, , was a decision by the Supreme Court of Canada of which the Court ruled that the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times, up to 9 months, violated the Quebec Charter of Human Rights and Freedoms. In a 4 to 3 decision, the Court found the Acts violated Quebecers' right to life and security of person under the Quebec Charter. The ruling is binding only in Quebec. Three of the seven judges also found that the laws violated section seven of the Canadian Charter of Rights and Freedoms. One judge did not rule on the Canadian Charter. The result was a 3–3 tie on the question of the Canadian Charter, so Chaoulli decision does not apply to any other province. Background Having suffered in the past from numerous health problems including a hip replacement, 73-year-old salesman George Zeliotis became an advocate for reducing waiting times for patients in Quebec hospitals. Jacques Chaoulli is a doctor who provided home appointments to patients. He attempted to get a licence to offer his services as an independent private hospital but was rejected due to provincial legislation prohibiting private health insurance. Together, the two men sought a declaratory judgment to contest the prohibition. Court's opinions Three separate opinions were written. The first is by Deschamps who found a violation of the Quebec Charter, but stated there was no necessity for her to rule on the Canadian Charter. A second opinion was written by McLachlin C.J. and Major J., with Bastarache J. concurring, on the violation of section seven. A dissenting opinion was given by Binnie and LeBel JJ. with Fish J. concurring in dissent. . The appeal court's characterization of the issue as an infringement of an economic right is rejected by Deschamps. She goes on to note that the long waits at hospitals can result in deaths and that private health care prohibited by the Quebec Acts would likely have saved those lives. The wait lists, she claims, are an implicit form of rationing, and it is the government's rationing policy that is being challenged here as a violation of the right to "security of person" (per Canadian Charter) and "personal inviolability" (per Quebec Charter). Deschamps sides with the trial judge, who found a violation of section 7 of the Canadian Charter, but she interprets it as being more of a violation of the similar section 1 of the Quebec Charter. She adopts a broad interpretation, citing R. v. Morgentaler among others as examples of delay in medical treatment as a violation of security of person. She further rejects the dissenters' suggestion that a patient could seek medical treatment outside of the province as too extreme and case-specific. Turning to the requisite analysis to justify the violation, Deschamps points to the "minimal impairment" expectation to be the one of the most interest. Expert and witness testimony was examined of which she
Chaoulli v Quebec (AG)
1602437
Section 1 of the Canadian Charter of Rights and Freedoms is the section that confirms that the rights listed in the Charter are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an individual's Charter rights. This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as child pornography (e.g., in R v Sharpe), hate speech (e.g., in R v Keegstra), and obscenity (e.g., in R v Butler). When the government has limited an individual's right, there is an onus upon the Crown to show, on the balance of probabilities, firstly, that the limitation was prescribed by law namely, that the law is attuned to the values of accessibility and intelligibility; and secondly, that it is justified in a free and democratic society, which means that it must have a justifiable purpose and must be proportional. Text Under the heading of "Guarantee of Rights and Freedoms", the section states: Prescribed by law The inquiry into whether the limitation was "prescribed by law" concerns the situation where the limitation was the result of some conduct of a government or its agents and whether the conduct was authorized by accessible and intelligible law. The Court articulated when the authorization would fail for being too vague as "where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances". Where there is no lawful basis for the conduct the limitation will certainly fail. In Little Sisters Book and Art Emporium v Canada, the Supreme Court found that the conduct of a border official in singling out homosexual from heterosexual reading materials was not authorized by any law. Likewise, police conduct that was not exercised under lawful authority will fail at this stage. Oakes test The primary test to determine if the purpose is demonstrably justifiable in a free and democratic society is known as the Oakes test, which takes its name from the essential case R v Oakes [1986] 1 S.C.R. 103 which was written by Chief Justice Dickson. The test is applied once the claimant has proven that one of the provisions of the Charter has been violated. The onus is on the Crown to pass the Oakes test. In R v Big M Drug Mart Ltd (1985), Dickson asserted that limitations on rights must be motivated by an objective of sufficient importance. Moreover, the limit must be as small as possible. In Oakes (1986), Dickson elaborated on the standard when one David Oakes was accused of selling narcotics. Dickson for a unanimous Court found that David Oakes' rights had been violated because he had been presumed guilty. This violation was not justified under the second step of the two step process: There must be a pressing and substantial objective The means must be proportional The means must be rationally connected to the objective There
Section 1 of the Canadian Charter of Rights and Freedoms
23697811
Hate speech laws in Canada include provisions in the federal Criminal Code, as well as statutory provisions relating to hate publications in three provinces and one territory. The Criminal Code creates criminal offences with respect to different aspects of hate propaganda, although without defining the term "hatred". Those offences are decided in the criminal courts and carry penal sanctions, such as fines, probation orders and imprisonment. Alberta, British Columbia, Saskatchewan and the Northwest Territories have created civil sanctions for hate speech and hate publications in their human rights legislation. Those claims are resolved through administrative tribunals or the civil courts, and can involve civil remedies such as damages or injunctive relief. The Supreme Court of Canada has rejected constitutional challenges to the hate propaganda offences in the Criminal Code, and has also rejected challenges to the hate publication provisions in human rights legislation. The Court has ruled that while the provisions restrict freedom of expression, the restrictions are justifiable under section 1 of the Canadian Charter of Rights and Freedoms. Meaning of "hatred" The various laws that refer to "hatred" do not define it. The Supreme Court has explained the meaning of the term in various cases that have come before the Court. For example, in R v Keegstra, decided in 1990, Chief Justice Dickson for the majority explained the meaning of "hatred" in the context of the Criminal Code: In 2013, Justice Rothstein, speaking for the unanimous court, explained the meaning of "hatred" in similar terms, in relation to the Saskatchewan Human Rights Code: Canadian Charter of Rights and Freedoms Laws dealing with hatred have to be measured against the Canadian Charter of Rights and Freedoms, which is part of the Constitution of Canada. Section 2 of the Charter protects freedom of expression, including freedom of the press, and also freedom of religion. Section 1 of the Charter guarantees the rights and freedoms set out in the Charter, but also recognizes that the rights and freedoms are subject to reasonable limits, provided the limits are prescribed by law and "can be demonstrably justified in a free and democratic society." Hatred offences of the Criminal Code Origin of the provisions In the early 1960s, concerns were raised by various public groups (such as the Canadian Jewish Congress), by some media outlets, and by some politicians (such as John Diefenbaker, then Leader of the Opposition) about the rise of hate publications in Canada. The federal government of Prime Minister Lester Pearson responded by appointing a committee in January 1965 to study the issue and make recommendations about legislation: the Special Committee on Hate Propaganda in Canada, commonly referred to as the "Cohen Committee" after its chair, Maxwell Cohen. The Minister of Justice, Guy Favreau appointed the seven members of the committee: Maxwell Cohen, Dean of Law at McGill University; Dr. James A. Corry, Principal of Queen's University; Father Gérard Dion, professor of industrial relations at Université Laval; Saul Hayes, QC, executive vice-president of the Canadian Jewish Congress; Mark MacGuigan, then a
Hate speech laws in Canada
2940493
Tremblay v Daigle [1989] 2 S.C.R. 530, was a decision of the Supreme Court of Canada in which it was found that a fetus has no legal status in Canada as a person, either in Canadian common law or in Quebec civil law. This, in turn, meant that men, while stating they are protecting fetal rights, cannot acquire injunctions to stop their partners from obtaining abortions in Canada. Background By the time the legal controversy began, Canadian abortion law had already been mostly invalidated, as the Therapeutic Abortion Committees were found unconstitutional under section 7 of the Canadian Charter of Rights and Freedoms in R v Morgentaler (1988). That case, however, while finding the committees were unfair to women requiring therapeutic abortions, had not resolved the issue of the status of fetal rights. Tremblay v Daigle thus began with two Quebec individuals named Chantale Daigle and Jean-Guy Tremblay, who were involved in a sexual relationship in 1988 and 1989, with Daigle becoming pregnant in 1989. Tremblay beat Daigle, despite being aware of her pregnancy, and afterwards the relationship came to an end and Daigle developed an interest in obtaining an abortion. Among other things, Daigle cited a desire to raise children in peaceful and stable circumstances, an interest in never seeing Tremblay again, and concern for her own psychological health. In response, Tremblay sought an injunction to halt the abortion, arguing he was protecting the fetus's right to life. Tremblay defended the existence of this fetal right by saying that the fetus is indeed a person. When the case reached the Supreme Court, Daigle left the province for the United States to terminate the pregnancy. Nevertheless, the issue was considered important enough that the Supreme Court declined to set aside the case for mootness. They went on to give a decision, which was unanimous and which vindicated Daigle. Ruling The Court ruled that it was not necessary to deal with the issues of Canadian federalism raised by the appeal; the issue of fetal rights would suffice to solve this particular dispute and prevent similar legal incidents in the future. The fetal rights were said to be anchored in the rights to life in the Canadian Charter, the Quebec Charter of Human Rights and Freedoms, and the Civil Code of Quebec. Moreover, it was argued Tremblay had a right to protect his "potential progeny." The Supreme Court considered and rejected all these arguments. As the Court noted, its role was to consider the fetus's legal status; it would not rule on its biological status, nor would it enter "philosophical and theological debates." As far as the Court could tell, there was no legal precedent for fetal rights under the Quebec Charter, and this Charter is written in "very general terms" and does not specify whether the rights within it were available to fetuses. Although the Charter does say its rights belong to humans, whether the fetus is a human is a merely "linguistic" question that would not solve the issue of
Tremblay v Daigle
3671389
RJR-MacDonald Inc v Canada (AG), [1995] 3 S.C.R. 199 is a leading Canadian constitutional decision of the Supreme Court of Canada what upheld the federal Tobacco Products Control Act but struck out the provisions that prevented tobacco advertising and unattributed health warnings. Background RJR MacDonald Inc. and Imperial Tobacco challenged the Act as being ultra vires the federal government's criminal law power and peace, order and good government power, and as being in violation of the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. Reasons of the court The Court upheld the Act as valid under the criminal law power but found that sections 4, 8, and 9 of the Act violated freedom of expression and could not be saved under section 1 of the Charter. There were four separate opinions given. Division of powers The Court found the Act was not colourable. The evil that the law is addressing does not have to be approached directly, and in those circumstances, it would not be practical. Even though the subject was not one that was commonly recognized as being criminal, that does not necessarily invalidate it. Charter issues The majority held that the impugned sections violated the freedom of expression under section 2(b) of the Charter. The right to freedom of expression includes the right to say nothing. The mandatory use of unattributed labels was a form of forced expression and so invoked section 2(b). The majority held that the violation was not upheld under section 1 of the Charter. See also List of Supreme Court of Canada cases (Lamer Court) External links Canadian Charter of Rights and Freedoms case law Supreme Court of Canada cases Canadian federalism case law Canadian freedom of expression case law 1995 in Canadian case law Smoking in Canada Tobacco case law R. J. Reynolds Tobacco Company Imperial Brands Medical lawsuits
RJR-MacDonald Inc v Canada (AG)
4440899
R v Skinner, [1990] 1 SCR 1235, is a leading constitutional decision of the Supreme Court of Canada on the freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms ("Charter"). Background Dorman Skinner was arrested while trying to proposition an undercover police officer. He was charged with "communicating in a public place for the purpose of obtaining the sexual services of a prostitute" contrary to section 195.1(1)(c) of the Criminal Code. He was convicted at trial. On appeal, Skinner argued the provision of the Criminal Code violated his right to freedom of expression under section 2(b) of the Charter. The Court of Appeal agreed and found a violation that could not be saved under section 1 of the Charter. It was also suggested the provision may also violate the right to freedom of association under section 2(d) of the Charter. The issues before the Supreme Court was whether section 195.1(1)(c) of the Criminal Code violated sections 2(b) and 2(d) of the Charter, and if so, whether the provision was justifiable under section 1 of the Charter. In a 4–2 decision, the Court overturned the ruling of the Court of Appeal. It held that the provision violated section 2(b) but was saved under section 1, and did not violate section 2(d). Opinion of the Court The majority opinion was written by Chief Justice Brian Dickson. He first found that section 195.1(1)(c) did not violate freedom of association. He stated that the law targets expressive content alone and does not relate to association. The provision does not depend on whether there was an agreement for exchange between consenting individual. Though the law may prevent communication for certain commercial activities it is not sufficient to invoke the freedom of association. In considering the freedom of expression under section 2(b) of the Charter, Dickson applies the same reasoning from the earlier Reference Re ss 193 and 195.1(1)(c) of the Criminal Code (Man), which found that section 195.1(1)(c) of the Criminal Code violated the freedom of expression but was saved under section 1. Dissent Justice Bertha Wilson, supported by Claire L'Heureux-Dubé, dissented. She, unlike Dickson, pointed to the Criminal Code reference decision. See also List of Supreme Court of Canada cases (Dickson Court) External links Canadian Charter of Rights and Freedoms case law Canadian freedom of expression case law Supreme Court of Canada cases 1990 in Canadian case law
R v Skinner
5861954
{| cellpadding="2" cellspacing="0" border="1" align="right" style="margin-left: 0.5em" width=300px ! bgcolor="6699FF" | United States v Cotroni |- | align="center" | Supreme Court of Canada |- ! bgcolor="6699FF" | Argued February 22–23, 1989 Decided June 8, 1989 |- | {| align="center" |- | valign="top"|Full case name: | valign="top"|<small>United States of America v. Frank Santo Cotroni and between United States of America v. Samir El Zein</small> |- | valign="top"| Citations: | valign="top"| [1989] 1 S.C.R. 1469; 1989 CanLII 106 (S.C.C.); (1989), 48 C.C.C. (3d) 193; (1989), [1990] 42 C.R.R. 101 |- | valign="top"| Prior history: | valign="top"|Judgment for the defendants in the Quebec Court of Appeal. |} |- ! bgcolor="6699FF" | Holding |- | Extradition of the respondents is justified; extradition is a minor issue regarding mobility rights. |- ! bgcolor="6699FF" | Court membership |- | |- ! bgcolor="6699FF" | Case opinions |- | |}United States v Cotroni [1989] 1 S.C.R. 1469 was a decision by the Supreme Court of Canada on extradition and freedom of movement under section 6 of the Canadian Charter of Rights and Freedoms. The Court found that extradition violates section 6 but is a justified infringement under section 1 of the Charter. The case was decided with United States v El Zein. Background The case involved Frank Santo Cotroni, a Canadian citizen who was accused of planning to sell heroin in the United States. He was arrested in Canada and plans were made to extradite him. Cotroni resisted the extradition on the grounds that it was in violation of section 6(1) of the Charter, which grants Canadian citizens the right to stay in Canada. He won his case in the Quebec Court of Appeal, who argued that it was possible to try Cotroni in Canada, where the crime was centred. The second respondent in the case was Samir El Zein, also a Canadian citizen, who gave heroin to two people in Canada who were then caught trying to cross the border with it. El Zein was arrested and the United States requested his e extradition. El Zein also won his case in the Court of Appeal. Decision When the case reached the Supreme Court, the appellants argued that section 6(1) should be interpreted in the way it was meant, to guard against arbitrary exile and not extradition, which may not be a permanent removal and does not terminate Canadian citizenship. Hansard from 1981, just before the implementation of the Charter, was cited to reinforce that point. Nevertheless, the Supreme Court majority decision, written by Gerard La Forest, cited Re B.C. Motor Vehicle Act (1985) to say the framers' intent was not binding in Charter case law. Rights can be given generous and liberal interpretations, and the right considered in this case was deemed to be important enough that limits would have to be justified. It was noted the wording of section 6(1) was vague and, if given a straightforward reading, could be interpreted to provide rights against extradition, not just arbitrary banishment. Indeed, the Canadian Bill of Rights
United States v Cotroni
75074338
Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia [2007] 2 SCR 391 is a landmark Canadian labour law case concerning freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. A majority of the Supreme Court of Canada determined that the Charter protects a meaningful process of collective bargaining. Background In 1987, the Supreme Court of Canada decided the Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 SCR 313. The majority opinion in the Alberta Reference indicated that collective bargaining was not protected by s. 2 of the Charter. Facts At issue was the constitutionality of Part 2 of the Health and Social Services Delivery Improvement Act, SBC 2002, c 2, enacted by the government of British Columbia. The Act purported to modify existing collective agreements: as described by the majority of the Supreme Court of Canada, "Part 2 gave health care employers greater flexibility to organize their relations with their employees as they see fit, and in some cases, to do so in ways that would not have been permissible under existing collective agreements and without adhering to requirements of consultation and notice that would otherwise obtain. It invalidated important provisions of collective agreements then in force, and effectively precluded meaningful collective bargaining on a number of specific issues." Judgment The majority concluded that sections 6(2), 6(4) and 9 of the British Columbia Act infringe section 2(d) of the Charter in a manner that could not be justified under section 1. The majority held that "the concept of freedom of association under s. 2(d) of the Charter includes [the] notion of a procedural right to collective bargaining." While this right does not "ensure a particular outcome in a labour dispute, or guarantee access to any particular statutory regime", the Court affirmed "the right of employees to associate in a process of collective action to achieve workplace goals." Government action that "substantially interferes" with this right violates section 2(d) of the Charter and requires justification under section 1. The majority also made use of international law as an interpretive aid. Specifically, the majority relied on the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the International Labour Organization's Freedom of Association and Protection of the Right to Organise Convention. At paragraph 69, the Court stated that "Canada’s international obligations can assist courts charged with interpreting the Charter’s guarantees". Subsequent developments In Saskatchewan Federation of Labour v Saskatchewan, the Supreme Court of Canada overruled the Alberta Reference. In Saskatchewan Federation, the Court expanded on its holding in BC Health Services, holding that the Charter protects not only the right to bargain collectively, but also the right to strike. See also List of Supreme Court of Canada cases (McLachlin Court) Canadian labour law Saskatchewan Federation of Labour v Saskatchewan References External links Full text of Supreme Court of Canada decision available at CanLII and LexUM Labour disputes in Canada Canadian trade union case
Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia
5943800
R v Finta, [1994] 1 SCR 701 is a case decided by the Supreme Court of Canada. The Court found that a 45-year delay before charging an individual under the crimes against humanity provisions of the Criminal Code does not fall within the meaning of "unreasonable delay" under the Canadian Charter of Rights and Freedoms. The period for "unreasonable delay" begins from the point that charges are laid. Background Imre Finta was a commander of the Gendarmerie in Szeged, Hungary, during World War II. After the war, he immigrated to Canada and became a citizen in 1956. Evidence was discovered which suggested he may have participated in the deportation of Jews from Hungary during the war. In 1988, he was charged with unlawful confinement, robbery, kidnapping and manslaughter under the war crimes provisions in the Criminal Code. During the pre-trial, Finta's lawyers, Doug Christie and Barbara Kulaszka, challenged the constitutionality of the criminal charges as a violation of section 11(b) of the Charter. The judge rejected this claim. However, at trial, the jury acquitted him on all counts. On the appeal by the Crown, the trial judgment was upheld including the dismissal of the Charter claim. The Crown appealed the decision to the Supreme Court which upheld the decision in 1994. In the earlier decision of R v Finta, [1993] 1 SCR 1138 the Supreme Court granted standing to intervene to the Human Rights League of B'nai B'rith Canada, the Canadian Jewish Congress and InterAmicus. Opinion of the Court The majority, written by Cory J, found that the delay did not engage section 11(b) of the Charter as the period of "unreasonable delay" begins at the time the charge is laid. A delay of 45 years, in fact, favours the accused as the memory of witnesses will be limited. Reasonableness depends, in part, on the amount of investigative work that it involved. Here, where investigation will easily stretch into years, a length of time amounting to 45 years is not beyond reason. Cory also found that the provisions did not violate section seven of the Charter as the delay was not contrary to any principles of fundamental justice. Nor was there a violation of sections 11(a), 11(d), 11(g), 12 or 15. Section 11(g) was particularly notable as it allowed Canadian courts to apply Canadian criminal law for acts that occurred outside of the country, but only where the acts were considered war crimes. See also List of Supreme Court of Canada cases Deschênes Commission External links Canadian Charter of Rights and Freedoms case law Supreme Court of Canada cases 1994 in Canadian case law Canadian criminal procedure case law
R v Finta
4276757
Multani v Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6 is a decision by the Supreme Court of Canada in which the Court struck down an order of a Quebec school authority, that prohibited a Sikh child from wearing a kirpan to school, as a violation of freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms. This order could not be saved under section 1 of the Charter. The case involved a 13-year-old Sikh named Gurbaj Singh, who in November 2001 dropped a metal kirpan at his school, École Sainte Catherine Labouré. This prompted the school board to request certain limits on the wearing of the kirpan, including that it be covered at all times. The Sikh family accepted this request. However, another board, in February 2002, overrode the school board, deciding that the kirpan was a weapon and thus was not allowed under the code of conduct. The council of commissioners agreed with the latter decision, although they suggested a non-metal kirpan could be used. The Quebec Court of Appeal found in favour of the council of commissioners. Decision First, the majority of the Court, whose opinion was authored by Justice Louise Charron, denied that the case should be decided under the rules of administrative law, which required simple reasonableness. The majority believed this would limit the rights under the Charter. As Charron wrote, "The rights and freedoms guaranteed by the Canadian Charter establish a minimum constitutional protection that must be taken into account by the legislature and by every person or body subject to the Canadian Charter." The rule against weapons under administrative law was not the subject of this case. The real focus was how in practise the law banned the kirpan. The Court went on to note that the council of commissioners, which had banned the kirpan, was bound by the Charter. This was because the council was created by a statute and thus received its powers from a legislature. While the concurring justices Deschamps and Abella believed section 1 of the Charter could only be used on unconstitutional written laws, Charron wrote that section 1 can also be applied to delegated power. If the power is used according to the law, it is "prescribed by law" as required by section 1; Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (2000) was an example of a case in which delegated power was not prescribed by law. Since the council acted according to the law, the Court could now look at the freedom of religion issue. Freedom of religion This raised the question of whether freedom of religion was an "absolute right" or had "internal limits" aside from the limits under section 1. Trinity Western University v. British Columbia College of Teachers (2001) was cited to suggest freedom of religion is limited by other values aside from under section 1, in this case the goals of order and security. The Supreme Court noted that since R. v.
Multani v Commission scolaire Marguerite‑Bourgeoys
2374511
Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference. According to the 2021 census, Christianity is the largest religion in Canada, with 53.3% of the population (more than half of these are Roman Catholic); one third of Canadians stated that they were irreligious or had no religion. In 2023, the country was scored 3 out of 4 for religious freedom; it was noted that in 2019, a new law was put in place stating that some government employees in positions of authority were not allowed to wear religious symbols. Legal framework Constitutional rights The "Fundamental Freedoms" section of the Canadian Charter of Rights and Freedoms states: 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association. Canadians are therefore free to have their own beliefs and opinions, are free to practise religion or refrain, and are free to establish media organizations with or without religious content. Canadian religious institutions generally benefit from charitable organization status, which allows supporters to benefit from tax credits or deductions for their financial contributions. According to the Charter's preamble, Canada is founded upon principles that recognize the supremacy of God. This portion of the preamble has not been accorded legal effect in Charter jurisprudence. The constitutional recognition of God has been criticized as conflicting in principle with the fundamental freedom of conscience and religion guaranteed in section 2, as it would disadvantage those who hold nontheistic or polytheistic beliefs, including atheism and Buddhism. As well, the Charter's preamble recognizes the rule of law, a principle that law should govern a nation, as opposed to being governed by decisions of individual government officials. Human rights codes While religious freedoms are protected from state interference by the Charter, the actions of private individuals are largely governed by the provincial human rights codes. These codes prohibit discrimination in the marketplace, accommodation, and employment on the grounds of a variety of personal characteristics, including religion. There is also a federal statute, the Canadian Human Rights Act, which prohibits discrimination in workplaces and businesses under federal jurisdiction, such as banks and airlines. The Act prohibits religious discrimination. Case law In 1955, the Supreme Court of Canada ruled in Chaput v. Romain, regarding Jehovah's Witnesses, that all religions have equal rights, based upon tradition and the rule of law. At the time, no statutes formed the basis for this argument. In the Guibord case in 1874, the Judicial Committee of the Privy Council, at that time the court of last resort for Canada within the British Empire, ruled that the civil courts of Canada have the jurisdiction to resolve disputes between members of a church and the church organization. The basis for the ruling was that churches are required to comply with their own internal rules and
Freedom of religion in Canada
3310252
Little Sisters Book and Art Emporium v Canada (Minister of Justice) [2000] 2 S.C.R. 1120, 2000 SCC 69 is a leading Supreme Court of Canada decision on freedom of expression and equality rights under the Canadian Charter of Rights and Freedoms. It was held that the Customs Act, which gave broad powers to customs inspectors to exclude "obscene" materials, violated the right to freedom of expression under section 2 but was justifiable under section 1. Background Little Sister's Book and Art Emporium is a bookstore in Vancouver, British Columbia, that sells gay and lesbian-related literature. It imports most of its material from the United States, which often caused trouble at the border when material was classified as obscene by Canada Customs and was thus refused entry. The bookstore challenged the provision of the Customs Act prohibiting the importation of obscene material as well as a section of the Act that put the onus on the importer to disprove obscenity. The courts below At trial, the court found that the customs has targeted shipments to the bookstore and attempted to prevent their entry into Canada. Consequently, the government was found to have violated section 2 of the Charter. However, the violation was justified under section 1. Judgment of the Supreme Court In a 6–3 decision, the Supreme Court upheld the ruling of the trial judge and found that though the law violated section 2, it was justified under section 1. The law was thus saved. However, they found that the way the law was implemented by customs officials was discriminatory and should be remedied, an opinion they suggested would avail the bookstore in any further legal battles. They also struck down part of the law that put the onus on an importer to prove material was not obscene. The ruling, therefore, upheld Canada Customs' right to prevent the importation of material that had already been banned as obscene by the courts, but curtailed the agency's right to preemptively or punitively detain material that had not been so adjudicated. See also List of Supreme Court of Canada cases (McLachlin Court) Censorship in Canada Further reading References External links Summary of case from mapleleafweb.com Canadian Charter of Rights and Freedoms case law Canadian freedom of expression case law Supreme Court of Canada cases Canadian LGBT rights case law 2000 in LGBT history 2000 in Canadian case law Bookselling
Little Sisters Book and Art Emporium v Canada
3202682
R v Sharpe, 2001 SCC 2 is a constitutional rights decision of the Supreme Court of Canada. The court balanced the societal interest to regulate child pornography against the right to freedom of expression possessed by the defendants under section 2 of the Canadian Charter of Rights and Freedoms; holding, that while general prohibition of child pornography was constitutional, there were some limits imposed by the Charter. The decision overturned a ruling by the British Columbia Court of Appeal. Background After police seized 517 photographs mostly of young boys, as well as sexually explicit stories; John Robin Sharpe was charged on two counts of possession of child pornography, and on another two counts of possession with intent to distribute. Sharpe argued that the relevant provision of the criminal code placed an unreasonable limitation on his freedom of expression, and in a ruling the British Columbia Court of Appeal concurred; Justice Duncan Shaw ruled that the law was a "profound invasion" of the freedom of expression and right to privacy found in the Charter. Before its eventual reexamination by the Supreme Court, the decision invited protest, with more than half of the Members of Parliament petitioning the Prime Minister to intervene. Holding In its ruling the Supreme Court emphasized the interest of the government to prevent the proliferation of child pornography and upheld its prohibition (reversing the decision to strike down the statute at-large), while also recognizing the importance of "adolescent self-fulfillment, self-actualization and sexual exploration and identity." -(Paragraph 109) and that also commentated "To ban the possession of our own private musings thus falls perilously close to criminalizing the mere articulation of thought. " -(Paragraph 108). Ultimately the court carved out two exceptions to the power, and law: "1. Self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and 2. Private recordings of lawful sexual activity: i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use." -(Paragraph 115). Aftermath Ultimately, after the case was remitted, Sharpe received a four-month conditional house arrest sentence, in issuing the sentence Shaw noted "In the eyes of many he has become a pariah, endured six years of this court case and has no criminal record". References External links Canadian Charter of Rights and Freedoms case law Canadian freedom of expression case law Child pornography law Sex case law Supreme Court of Canada cases 2001 in Canadian case law Canadian criminal case law Section Two Charter case law
R v Sharpe
220469
Ford v Quebec (AG), [1988] 2 SCR 712 is a landmark Supreme Court of Canada decision in which the Court struck down part of the Charter of the French Language, commonly known as "Bill 101". This law had prohibited the use of commercial signs written in languages other than French and required businesses to use only the French versions of their names. The court ruled that Bill 101 violated the freedom of expression as guaranteed in the Canadian Charter of Rights and Freedoms. Background The appeal, launched by the government of Quebec, consolidated many cases initiated by Montreal-area merchants such as Montreal florist Hyman Singer and West Island wool shop owner Valerie Ford. Following complaints, the Office québécois de la langue française had instructed them to inform and serve their customers in French and replace their bilingual French and English signs with unilingual French ones. They had been fined for violation of the Charter of the French Language and decided to fight the case in court with the backing of Alliance Quebec. The Supreme Court of Canada upheld the decisions of the Quebec Superior Court and the Quebec Court of Appeal. Aftermath In late 1989, shortly after the Supreme Court's decision, Premier of Quebec Robert Bourassa's Liberal Party of Quebec government passed Bill 178, making minor amendments to the Charter of the French Language. Recognizing that the amendments did not follow the Supreme Court's ruling, the provincial legislature invoked section 33 of the Canadian Charter of Rights and Freedoms (also known as the notwithstanding clause) to shield Bill 178 from review by courts for five years. This move was politically controversial, both among Quebec nationalists, who were unhappy with the changes to the Charter of the French Language; and among English-speaking Quebecers, who opposed the use of the notwithstanding clause. Tension over this issue was a contributing factor to the failure of the Meech Lake Accord, among other political repercussions. The law was challenged under International Covenant on Civil and Political Rights. The Human Rights Committee found a violation of article 19 which guarantees right to opinion and freedom of expression. The State was ordered to remedy the violation by an amendment to the law. In 1993, the Charter of the French Language was amended in the manner suggested by the Supreme Court of Canada. Bill 86 was enacted by the Bourassa government to amend the Charter. It now states that French must be predominant on commercial signs, but a language other than French may also be used. Accordingly, the law no longer invokes the notwithstanding clause. See also List of Supreme Court of Canada cases (Dickson Court) Demolinguistics of Quebec References External links Charter of the French language Article critical of the decision "The implications of accommodation", Policy Options, May 1990 Canadian freedom of expression case law Canadian Charter of Rights and Freedoms case law Supreme Court of Canada cases Bilingualism in Canada 1988 in Canadian case law Quebec language policy Language case law Language conflict in Canada
Ford v Quebec (AG)
3673396
Dagenais v Canadian Broadcasting Corp, [1994] 3 S.C.R. 835 is the leading Supreme Court of Canada decision on publication bans and their relation to the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. It was held that judges have a common law discretionary authority to impose publication bans on information revealed in a criminal trial. The judge, however, must weigh competing rights, such as freedom of expression and right to a fair trial, to mizzen the violation of rights. It was further held that the media has a right to appeal a decision of a publication ban. Background Four former and present members of the Christian Brothers, a Catholic order, were charged with sexual abuse of young boys while they were teachers at an Ontario Catholic school. During their trial the Canadian Broadcasting Corporation produced a dramatic mini-series, based on another sexual abuse scandal at Mount Cashel Orphanage, named The Boys of St. Vincent, and it was scheduled to be broadcast nationwide in the first week of December, 1992. The defence brought an application requesting the jury be charged before the airing of the show or else sequestered over the weekend of the show's airing. The judge declined and instead merely directed the jury to avoid watching the show. The day before the airing the defence applied for an injunction to restrain the CBC from broadcasting the show and from publishing any information relating to the show until the last of the four trials were over. The injunction was granted. On appeal, the Court of Appeal for Ontario upheld the injunction but limited it only to Ontario and Montreal, and overturned the ban on any publicity of the show. The CBC and the National Film Board of Canada appealed the decision to the Supreme Court of Canada. Opinion of the Court The majority of the Court held that the publication ban was in violation of the freedom of expression under section 2(b) of the Charter. Aftermath The Court set out a test for a publication ban to be granted, and this has since become known as the Dagenais/Mentuck test: Smith J stated in a 2014 judgment that: See also List of Supreme Court of Canada cases (Lamer Court) External links References Canadian Charter of Rights and Freedoms case law Canadian freedom of expression case law Supreme Court of Canada cases 1994 in Canadian case law Canadian Broadcasting Corporation Publication bans in Canadian case law
Dagenais v Canadian Broadcasting Corp
4667726
British Columbia Government Employees' Union v British Columbia (AG), [1988] 2 S.C.R. 214 is a leading Supreme Court of Canada decision on the right to picket as a freedom of expression under section 2(b) of Canadian Charter of Rights and Freedoms. Background In November 1983, the British Columbia Government and Service Employees' Union (BCGEU), of which the employees of the superior courts were members, went on strike. The staff of the British Columbia Supreme Court picketed outside of the court house and only let in a minimum number of people needed for urgent cases. When Chief Justice Allan McEachern arrived in the morning to see the staff picketing he went to his office and issued an order on his own motion prohibiting picket lines outside of courthouses in British Columbia. The issues before the Supreme Court of Canada were: whether the judge could constitutionally enjoin picketing of court-houses by a union representing court employees engaged in a lawful strike; whether an enactment by a provincial legislature or by Parliament could validly deprive a judge of a Supreme Court of his inherent authority to protect the functions and processes of his and other courts without an amendment to the Constitution of Canada; whether the order restraining picketing and other activities within the precincts of all court-houses in British Columbia infringed or denied the rights and freedoms guaranteed by ss. 2(b), (c), 7, 11(a), (c) and (d) of the Canadian Charter of Rights and Freedoms, and if so, whether the order was justified by s. 1 of the Charter. The majority held that the judge could enjoin the picketers and that his order violated the freedom of expression under section 2(b) of the Charter, but was saved under section 1. See also List of Supreme Court of Canada cases (Dickson Court) External links Canadian freedom of expression case law Supreme Court of Canada cases Labour relations in Canada 1988 in Canadian case law Section Two Charter case law Labour relations in British Columbia
British Columbia Government Employees' Union v British Columbia (AG)
3491987
Harper v Canada (AG), [2004] 1 S.C.R. 827, 2004 SCC 33, is a leading decision of the Supreme Court of Canada wherein the Court ruled that Canada Elections Act's spending limits on third party election advertising did violate section 2(b) of the Canadian Charter of Rights and Freedoms but was justified under Section One of the Canadian Charter of Rights and Freedoms. Background The 1974 Election Expenses Act prohibited third party interest groups, defined as any individual or group other than a candidate or a registered political party, from spending money in promoting or opposing candidates and parties. In 1997, the Supreme Court ruled in Libman v. Attorney General of Quebec that restricting third party spending has a valid object "to permit an informed choice to be made by ensuring that some positions are not buried by others." The Liberal Party of Canada's government introduced Bill C-2 which became the new Canada Elections Act in 2002. Bill C-2 limited third party election advertising maximum spending to $150,000 nationwide, of which a maximum of $3,000 can be spent on a given electoral district. Stephen Harper, then president of the National Citizens Coalition (he became Prime Minister in 2006), launched a constitutional challenge in June 2000 to Court of Queen's Bench of Alberta in Edmonton. The court held that sections 350 and 351 of the Canada Elections Act were unconstitutional. The Alberta Court of Appeal, in a 2-1 decision, ruled on December 16, 2002, that all provisions on third party activities, except for section 358, violate the Charter of Rights and Freedoms. Ruling The majority was written by Justice Bastarache with Justices Iacobucci, Arbour, LeBel, Deschamps and Fish concurring. The court found that, though the spending limits infringe upon section 2b of the Charter, the law is reasonable and is justified in light of section 1. The majority concluded that the objective of the spending limits is electoral fairness. The law has an effect in creating "a level playing field for those who wish to engage in the electoral discourse, enabling voters to be better informed". In addition, section 3 of the Charter is not infringed because the right of meaningful participation in electoral process includes the right to participate in an informed manner. Without spending limits, individuals or groups can dominate the discussion and prevent opposing views from being heard. Dissent Chief Justice McLachlin and Justice Major wrote for the dissent (in parts), with Justice Binnie concurring. The dissenting justices argued that the spending limit set out in section 350 of the Canada Elections Act is inconsistent with section 2b of the Charter of Rights and Freedoms as the third party limits were too restrictive. The limit of $3000 was insufficient to purchase a full-page advertisement in a major Canadian newspaper or to initiate a bulk-mailing campaign within a single riding with Canada Post. Thus, radio and television communication becomes the "exclusive right of registered political parties and their candidates". Section 351 should also be invalidated because "it is keyed exclusively
Harper v Canada (AG)
5280464
Godbout v Longueuil (City of), [1997] 3 S.C.R. 844 is a leading Supreme Court of Canada decision where the Court found that the city of Longueuil' requirement that all permanent employees of the city must reside within the municipality was in violation of the Quebec Charter of Human Rights and Freedoms Background Michèle Godbout was hired as a dispatcher for the Longueuil police force. As part of her employment she was required to sign a declaration that she would reside within the city and if she were to move outside of the city her employment would be terminated without notice. Initially she had lived within the city but soon bought a house in the nearby town of Chambly. When she refused to move back in she was fired. Before the Superior Court of Quebec, the parties argued primarily as to whether the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms applied in this case. Judge Turmel ruled that because the employment contract constituted a matter of private law between an employer (here the city of Longueuil) and an employee, neither charters applied, in so far as such rights as granted by the charters can, under civil law be willingly waived by contract. Reasons of the court Justice La Forest, writing for the Court in a plurality opinion, held that the restriction on residency was unconstitutional. La Forest found that the selection of a place of residence was within the meaning of "private life" which is protected under section 5 of the Quebec Charter. He held that the city could not justify the infringement under section 9.1 of the Charter, which allows for limitations on the scope of rights. La Forest also considered the question of whether the Canadian Charter applied to municipalities. He found that it did as they were government entities. He noted that municipalities were run by elected officials and were accountable to the public, they had the power to collect taxes, and they had the power to make laws which they derived from the provincial government. In addressing the municipality's argument that the residency requirement was merely a private employment contract and not a governmental function, La Forest J. found that once a body is labelled governmental, that body cannot use colourable devices or organize activities to avoid Charter responsibility. La Forest further considered the validity of the law under section 7 of the Canadian Charter. He identified section 7 as protecting personal autonomy which includes the choice of selecting one's home. At no time did Godbout waive that right, even in signing the employment contract that contained the residency restriction. He further found that the restriction did not conform to the principles of fundamental justice as there was no compelling reason to have such a restriction. Justice La Forest's decision on the Canadian Charter (joined by L’Heureux-Dubé and McLachlin JJ.) does not have legal force, as the six other justices declined to consider the s.7 claim, after likewise finding
Godbout v Longueuil (City of)
6360738
Syndicat Northcrest v Amselem [2004] 2 S.C.R. 551 was a decision of the Supreme Court of Canada that attempted to define freedom of religion under the Quebec Charter of Human Rights and Freedoms and section 2 of the Canadian Charter of Rights and Freedoms. Although the Supreme Court split on their definition, the majority advocated tolerating a practice where the individual sincerely feels it is connected to religion, regardless of whether the practice is required by a religious authority. Background The case arose after Moïse Amselem, his youngest son David, and René Elhadad, in Montreal erected sukkahs on their balconies in a residential building which they owned. Sukkahs are small dwellings in which Jews live during Sukkot, a Jewish holiday, in accordance with the Hebrew Bible. However, those who managed the buildings, Syndicat Northcrest, claimed the sukkahs violated by-laws forbidding structures to be built on the balconies. The Orthodox Jews had not seen this requirement as applying to religious requirements because Christmas decorations and the like were allowed. Syndicat Northcrest denied all requests that sukkahs be built, except one to be shared but this did not however meet minimal Jewish Halachic requirements. Consequently, an injunction by Syndicat Northcrest was filed against further sukkahs. While there was no government action responsible for violating a right, the Quebec Charter is of relevance to personal disputes. As Justice Michel Bastarache wrote, "the first paragraph of s. 9.1 [of the Quebec Charter], insofar as it does not require that the infringement of a right or freedom result from the application of the law, applies only to private law relationships, that is, to infringements of the rights and freedoms of private individuals by other private individuals." Bastarache noted this is what occurred in a previous case, Aubry v Éditions Vice-Versa Inc (1998). Decision The majority decision was written by Justice Frank Iacobucci. He examined whether the by-laws violated the freedom of religion of the Orthodox Jews, and whether Syndicat Northcrest's opposition to the sukkahs was protected by rights to enjoy property under the Quebec Charter. Iacobucci first attempted to define freedom of religion, and started by giving a legal definition for religion. He decided that religion is a thorough set of beliefs regarding a higher power, tied with a person's view of him or herself and his/her needs to realize spiritual completeness. Iacobucci went on to note that in past freedom of religion cases, such as R v Big M Drug Mart Ltd (1985), the Supreme Court has advocated giving freedom of religion a large and liberal definition emphasizing individual rights. In Big M, it was noted there should be respect for religious diversity and no coercion to do something in violation of one's religion. A journal article was then cited to establish this precedent favoured an individual's view of religion to an organized church's. Thus, anyone who claims rights to freedom of religion does not need to demonstrate that they were denied rights to worship in accordance with the manner required by a religious
Syndicat Northcrest v Amselem
3260680
New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) is a leading Supreme Court of Canada decision wherein the court has ruled that parliamentary privilege is a part of the unwritten convention in the Constitution of Canada. Therefore, the Canadian Charter of Rights and Freedoms do not apply to members of Nova Scotia House of Assembly when they exercise their inherent privileges of refusing strangers from entering the House. Background New Brunswick Broadcasting Company, carrying on business under the name of MITV, had made a request to film the proceedings of the Nova Scotia House of Assembly with its own camera or one provided by the speaker. However, the Speaker refused television cameras in the House citing parliamentary privilege. New Brunswick Broadcasting Co. commenced a proceeding in the Supreme Court of Nova Scotia, Trial Division against the appellant seeking an order "allowing MITV to film the proceedings of the House of Assembly with its own cameras or by the Speaker providing full television coverage to all members of the television media, or otherwise". The Speaker joined issue. The Canadian Broadcasting Corporation was joined as a plaintiff at the corporation's request and MITV subsequently withdrew from the proceedings. The courts below Nathanson J of the Trial Division granted the plaintiff's claim, and ordered: the plaintiffs had a right of access pursuant to s. 2(b) of the Charter such right of access is limited by the privileges of the House of Assembly, reflected in rules which shall infringe freedom of expression as little as possible the House of Assembly or the Speaker on its behalf shall develop such rules the court will retain jurisdiction to judge the timeliness of the actions of any of the parties and the reasonableness of the rules adopted. the Court reserves the matter of costs The Speaker appealed to the Supreme Court of Nova Scotia, Appeal Division. In a 3-2 decision, the appeal was dismissed, but the last four paragraphs of the order were struck out. On appeal to the Supreme Court of Canada, in July 1991 Gonthier J certified the following constitutional questions to be addressed: Does the Canadian Charter of Rights and Freedoms apply to the members of the House of Assembly when exercising their privileges as members? If the answer to question 1 is yes, does exercising a privilege so as to refuse access to the media to the public gallery to record and relay to the public proceedings of the House of Assembly by means of their cameras contravene s. 2(b) of the Charter? If the answer to question 2 is yes, is such a refusal a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Charter? At the Supreme Court In a 6-2 decision, it was held that the answer to Question 1 was No, and it was unnecessary to answer the other two questions. McLachlin J (as she then was) found that, although the
New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly)
2409477
Section 26 of the Canadian Charter of Rights and Freedoms, like other provisions within the section 25 to 31 bloc, provides a guide in interpreting how the Charter should affect Canadian society. The section's particular role is to address rights not covered by or mentioned in the Charter. The section reads: Purpose As constitutional scholar Peter Hogg notes, this section is analogous to the Ninth Amendment to the United States Constitution, which reads, In other words, section 26 confirms that rights not within the Charter are nevertheless as real as they would be had the Charter never been enacted. According to Hogg, the purpose of this "cautionary provision" was to confirm pre-Charter rights will persist. Some rights that predate the Charter but cannot be found within it are anchored in the Canadian Bill of Rights and its provincial counterparts, as well as in the common law. The rights to "enjoyment of property" and to have one's rights and obligations determined through a fair hearing and through fundamental justice, are found in the Canadian Bill of Rights but are not duplicated in the Charter, and thus fall under the category of rights referred to in section 26. A notable case in which section 26 and the Bill of Rights were discussed is Singh v. Minister of Employment and Immigration (1985). On one of its websites, the government of Canada claims there was also a more forward-looking purpose for section 26, namely to allow non-Charter rights to continue being created. Rights not included in the Charter but established in the future by Parliament, a provincial legislature, or in international law, will be valid. What rights are not afforded any recognition by section 26 has also been discussed. In 1986, author Dale Gibson argued that the rights referred to in section 26 are positive rights belonging to private individuals, as opposed to politicians and bureaucrats acting on behalf of the government. The reason for this was that politicians and bureaucrats acting on behalf of the government could claim that their "freedom to discriminate" could be a freedom protected by section 26. This would, in turn, lead to limits on the Charter rights of private individuals being discriminated against, which would render these Charter rights "meaningless." Still, section 26 is not a means to ensure that all rights forgotten or neglected by the drafters of the Charter are automatically endowed with the same status as rights specifically named in the Charter. This was heavily indicated in 1985, by both a Federal Court and a Prince Edward Island court. In the case Le Groupe des Eleveurs de Volailles et al. v. Canadian Chicken Marketing Agency, the Federal Court ruled that non-Charter rights are not enhanced by section 26, and in R. v. MacAusland, the Prince Edward Island court ruled that non-Charter rights are not constitutionally guaranteed, although they are not limited by the Charter either. Hence, while the Charter in and of itself does not repeal rights, legislatures still can. Thus s. 26 is a
Section 26 of the Canadian Charter of Rights and Freedoms
373335
The Charter of Human Rights and Freedoms (), also known as the "Quebec Charter", is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975. It received Royal Assent from Lieutenant Governor Hugues Lapointe, coming into effect on June 28, 1976. Introduced by the Liberal government of Robert Bourassa, the Charter followed extensive preparatory work that began under the Union Nationale government of Daniel Johnson. The Charter recognizes that every person on the territory of Quebec is equal in value and in dignity. Since the Charter aims to guarantee human rights and to harmonize the relations between citizens, and between citizens and institutions, the Charter binds the state (legislature, executive, administrative) and applies to private law relations (between persons). The Charter also establishes the Commission des droits de la personne et des droits de la jeunesse (Human Rights and Youth Rights Commission, also known by its acronym "CDPDJ"), charged to promote and apply the Charter, and the Human Rights Tribunal of Québec (French: Tribunal des droits de la personne). The Charter ranks among other quasi-constitutional Quebec laws, such as the Charter of the French Language and the Act respecting Access to documents held by public bodies and the Protection of personal information. Having precedence over all provincial legislation (including the latter), the Charter of Human Rights and Freedoms stands at the pinnacle of Quebec's legal system. Only the Constitution of Canada, including the Canadian Charter of Rights and Freedoms, enjoys priority over the Quebec charter. Other Canadian provinces and territories have adopted similar laws. Provisions The Charter of Human Rights and Freedoms consists of seven parts: Part I defines fundamental human rights. Its six chapters enunciate fundamental freedoms and rights, equality rights, political rights, judicial rights, economic and social rights, and interpretative provisions. Part II establishes the Commission des droits de la personne et des droits de la jeunesse. The commission is responsible for promoting and upholding the principles of the charter by any appropriate measures, including investigating possible cases of discrimination and the instigation of litigation. Members of the commission are appointed by the National Assembly. The commission's staff members do not belong to the Civil Service, in order to safeguard their independence. Part III provides for affirmative action programs. Part IV guarantees rights to privacy. Part V gives the government regulatory powers. Part VI establishes the Human Rights Tribunal of Quebec, whose members that hold the decision-making power are chosen from among the judiciary. Part VII provides the final dispositions of the Charter, as well as some punitive sanctions. Comparison with other human rights instruments The Charter of Human Rights and Freedoms is unique among Canadian (and North American) human rights documents in that it covers not only the fundamental (civil and political) human rights but also a number of important social and economic rights. The protections contained in the Charter are inspired by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights
Quebec Charter of Human Rights and Freedoms
4468049
Reference re ss. 193 & 195.1(1)(c) of the Criminal Code (Man.) [1990] 1 S.C.R. 1123, commonly known as the Prostitution Reference, is a decision of the Supreme Court of Canada on the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms, and on prostitution in Canada. Manitoba's Appeal Court had ruled the legislation violated the guarantee of freedom of expression in the Charter of Rights and Freedoms, by constraining communication in relation to legal activity (R. v. Skinner (1987), 35 C.C.C. (3d) 203). The case was referred to the Supreme court. The Supreme Court held that the criminal code provision that prohibited communication for the purpose of engaging in prostitution was in violation of the right to freedom of expression; however, it could be justified under section 1 of the Charter and so it was upheld. The majority, with both women dissenting, found that the purpose of eliminating prostitution was a valid goal and that the provision was rationally connected and proportional to that goal. Accordingly, the provision was upheld. The justification was set out in three stages: The court must first characterize the objective of the law (a remedy for solicitation in public places and the eradication of social nuisance from the public display of the sale of sex). This was constructed as restricted to taking prostitution off the streets and out of public view. In this respect, Dickson disagreed with the opinion of another justice that the legislative objective addressed the broader questions of the exploitation, degradation and subordination of women. The court must assess the proportionality of the legislation to the objectives; in particular any infringement of rights must be the minimum to achieve this. It was held the provisions were not unduly intrusive. The court must determine if the effects of the law so infringe a protected right that it outweighs the objective. It was held that the curtailment of street solicitation was in keeping with the interests of society, for its nuisance‑related aspects. The decision was later upheld in Canada (AG) v Bedford. See also List of Supreme Court of Canada cases (Dickson Court) Prostitution law in Canada References Canadian freedom of expression case law Supreme Court of Canada cases Canadian Charter of Rights and Freedoms case law Prostitution law in Canada 1990 in Canadian case law Supreme Court of Canada reference question cases
Prostitution Reference
2932362
Hunter v Southam Inc [1984] 2 S.C.R. 145 is a landmark Supreme Court of Canada privacy rights case and as well is the first Supreme Court decision to consider section 8 of the Canadian Charter of Rights and Freedoms. Background An investigation was begun by the government under the authority of the Combines Investigation Act into Southam Newspaper. The investigators entered Southam's offices in Edmonton and elsewhere to examine documents. The search was authorized prior to the enactment of the Charter but the search did not commence until afterwards. The challenge was allowed. At the Alberta Court of Appeal, the judge found that part of the Act was inconsistent with the Charter and therefore of no force or effect. The Supreme Court considered section 8 for the first time and upheld the ruling of the Court of Appeal. Reasons of the court Justice Dickson (as he then was), writing for a unanimous Court, held that the Combines Investigation Act violated the Charter as it did not provide an appropriate standard for administering warrants. The Court held that the purpose of section 8 is to protect an individual's reasonable expectation of privacy, and to limit government action that will encroach on that expectation. Furthermore, to assess the extent of those rights the right to privacy must be balanced against the government's duty to enforce the law. In reaffirming the doctrine of purposive interpretation when reading the Constitution, Dickson goes on to make a fundamental and often quoted statement of the purpose of the Constitution and how it should be interpreted, stating: External links Section Eight Charter case law Canadian Charter of Rights and Freedoms case law Supreme Court of Canada cases 1984 in Canadian case law
Hunter v Southam Inc
2128284
Gosselin v Quebec (AG) [2002] 4 SCR 429, 2002 SCC 84, is the first claim under section 7 of the Canadian Charter of Rights and Freedoms to a right to an adequate level of social assistance. The Supreme Court of Canada rejected the Charter challenge against a Quebec law excluding citizens under age 30 from receiving full social security benefits. Background Between 1984 and 1989, a period of alarming and growing unemployment among young adults, under section 29(a) of the Social Aid Regulation (Règlement sur l’aide sociale), the Quebec government provided those who were single, unemployed and under 30 years old with $170 per month in social assistance, which amounted to only a third of the regular benefits. Full benefits were only available if the individuals would participate in one of three employability programs: On-the-job Training, Community Work or Remedial Education. The objective behind it was to encourage youth to find work or go to school. According to the Supreme Court of Canada, the new scheme was based on the philosophy that the most effective way to encourage and enable young people to join the workforce was to make increased benefits conditional on participating in one of three of the workfare programs. Louise Gosselin was under age 30 during the period from 1984 to 1989. She struggled with psychological problems and drug and alcohol addictions and attempted to work as a cook, waitress, seller and nurses' assistant, among many other jobs. She was homeless periodically, lived in an unheated apartment for one winter, and when she rented a room at a boarding house, she was left with no money for food. Gosselin brought a class action on behalf of 75,000 individuals against the Quebec government for violation of her section 15 equality rights and Section Seven of the Canadian Charter of Rights and Freedoms right to life, liberty and security of the person. As well, she claimed that her social rights in section 45 of the Quebec Charter of Rights and Freedoms were violated. The Québec Court of Appeal was divided but ruled that the regulation did not violate the Canadian or Quebec Charter. Two judges found a violation of section 15 of the Canadian Charter, but only one found that it could not be saved by section 1. Another dissenting judge found a violation of section 45 of the Quebec Charter. Supreme Court's opinion The Supreme Court decided by 5–4 that there was no violation of section 15; by 7–2 that there was no violation of section 7; and by 6–1 that there was no violation of section 45 of the Quebec Charter of Rights and Freedoms (two justices ruled that section 45 was unenforceable in this situation). The majority opinion was written by McLachlin CJ. Section 15 McLachlin, with Gonthier, Iacobucci, Major, and Binnie JJ concurring, found there was not violation of section 15. In applying the analytical framework for section 15 from Law v Canada, McLachlin identified the government purpose was to promote short-terms autonomy among youth.
Gosselin v Quebec (AG)