Ri ghts and Freedoms are two di sti nct l egal terms- see handout
Recogni ti on of ri ghts and freedoms has been a struggl e throughout hi story
There are 5 basi c questi ons when di scussi ng ri ghts and what they are:
1. What ri ghts shoul d peopl e have? 2. Shoul d some ri ghts be absol ute (unrestri cted)? 3. Is everyone enti tl ed to the same ri ghts? 4. What i s the power of the state i n creati ng and protecti ng ri ghts 5. How can peopl e ensure that governments do not unreasonabl y restri ct thei r ri ghts and freedoms? RIGHTS AND FREEDOMS http: //www. youthforhumanri ghts. org/ thi s vi deo can do a better j ob than me
1215 Magna Carta- basi c i ndi vi dual ri ghts for the peopl e of Engl and
1869 Bi l l of Ri ghts gave Bri ti sh parl i ament supremacy over the monarchy and extended pol i ti cal ri ghts (free el ecti ons and freedom from cruel treatment)
1776 Decl arati on of Independence (USA) 1789 decl arati on of the Ri ghts of Man (France)
Both of these documents stated that al l peopl e had human ri ghts i ncl udi ng i nal i enabl e ri ghts of l i berty and equal i ty HISTORY 1948 Uni versal Decl arati on of Human Ri ghts- fundamental freedoms to al l l i vi ng peopl e i ncl udi ng freedom of thought, opi ni on, expressi on, rel i gi on and peaceful assembl y and associ ati on
Evol uti on of the human ri ghts concept i n Canada hasn t been as smooth as we thi nk
Sl avery Li mi ted franchi se Di scri mi natory practi ces agai nst abori gi nal s, non whi tes and i mmi grants Anti - Asi an treatment Women
See handout HISTORY Fi rst attempt to codi fy ri ghts and freedoms across Canada was the Canadian Bi l l of Ri ghts 1960
John Di efenbaker
Recogni zed the ri ght to l i fe, l i berty, and security of the person Freedom of rel i gion, speech, assembly and associ ation Freedom of the press The ri ght to counsel and the ri ght to a fai r hearing
Had severe l i mi tations- onl y applied to federal matters and coul d be overruled si nce i t was onl y a bi l l not a l aw BILL OF RIGHTS Pi erre Trudeau- once PM he began the process of entrenchi ng ri ghts and freedoms pri nci pl es i nto l aw
If ri ghts and freedoms are entrenched- they are protected, regardl ess of whi ch government i s i n power
It al so means i t becomes consti tuti onal l aw therefore any l aw passed by the government must be consi stent wi th the terms set out i n the Charter
Shi fted power from supremacy of parl i ament to the courts and the Charter
For Trudeau to pass thi s he had to agree to an overri de cl ause (we wi l l di scuss thi s further) ENTRENCHMENT OF RIGHTS The Charter applied to al l l evels of government, Crown corporations, banks and any other government regul ated organi zation
If there i s a si tuation that doesn t i nvol ve the government i t doesn t apply
Example: I own an apartment and you apply to rent. I l ook at you and sl am the door i n your face and say I don t rent to people l i ke you. You cannot rel y on the Charter
but you can rel ay on something el se JURISDICTION AND ENFORCEMENT Secti on 24- people have the ri ght to chal lenge the government i n court i f they bel i eve that their Charter ri ghts have been i nfri nged or vi ol ated by the government
The Charter i s wri tten i n general terms
Judges can i nterpret and expand on i t - al l ow the Charter to grow-
It i s up to the Supreme Court al one to determine i f there are ri ghts vi ol ations JURISDICTION AND ENFORCEMENT To determine whether a ri ghts case has meri t, the SCC consi ders these questions:
1. Was the ri ght i nfri nged or vi ol ated by the government?
2. Is the ri ght i n questi on covered by the Charter?
3. Is the vi ol ati on or i nfri ngement wi thin a reasonable l i mit? (uhoh) ROLE OF THE SUPREME COURT If the SCC fi nds that a Charter ri ght or freedom has been vi ol ated, they may stri ke down the l aw- requi ring parl i ament to rewrite the l aw
It i s real ly al l about i nterpretation- Case Law/Precedent
The SCC (whom you do not vote for) can overrule l aws passed by the people that we el ect (democracy?)