THE CHARTER OF

RIGHTS AND FREEDOMS

AND THE COURTS
CLN4U: Unit 2
(Chapter 5)

Evolution of the Charter

English Common Law

Based on customs and traditions

Established the principle of parliamentary
supremacy (legislative branch is the highest
law-making body in the country)

Evolution of the Charter

Canadian Bill of Rights (1960)

Codified the basic rights of Canadians

The Bill of Rights had limited impact because:

It was an ordinary statute and could be changed

easily by parliament (it was not entrenched in the
constitution)
It only applied to areas of federal jurisdiction and not
to areas of provincial jurisdiction
It did not carry the legal power of constitutional law

Evolution of the Charter

The Victoria Charter

Proposed to entrench the Charter of Rights in

the constitution, as well as to patriate the
constitution from the U.K.
Quebec would not accept the terms (they
wanted stronger French language rights
included), and did not agree to support the new
charter

Evolution of the Charter

Charter of Rights and Freedoms

Entrenched in the Constitution Act 1982,

therefore is part of the supreme law of the
land
Protects Canadians at all levels of government
jurisdiction
Canadians can challenge any law that conflicts
with their rights through the court system.

Key aspects of the Charter

Section 1

Sets reasonable limits on all rights and

freedoms guaranteed under the Charter
These limits must be important, as well as
reasonable and justifiable for the benefit of
society.
These benefits (to society) must be greater than
the harm resulting from the violation of the
right, and the law must interfere as little as
possible with the right or freedom in question.

Key aspects of the Charter

Protection of Rights and Freedoms

Fundamental freedoms
Democratic rights
Mobility rights
Legal rights
Equality rights
Official language rights
Minority language rights

Key aspects of the Charter

Limits on Applying the Charter
1.

2.

3.

The Charter applies only to the public sector

(all levels of government), and not to
relationships between private citizens.
Any violation of the Charter may be justified
under section 1.
Section 33, the notwithstanding clause,
allows legislatures (Federal or Provincial) to
override charter rights by passing legislation
that may violate one or a group of rights.

Key aspects of the Charter

The Role and Power of the Courts

Judges are appointed by governments.

Supreme Court justices are appointed by the
Prime Minister.
Some people believe that this process is
undemocratic; especially since the courts have
more power to interpret laws and force changes
in the law.
Does this power threaten the democratic
legislative process?

Some Important Cases

R v. Oakes, [1986] 1 SCR 103
Tested the right to be innocent until
proven guilty
R v. Keegstra, [1990] 3 SCR 697
Tested the limits of freedom of
expression
M. v. H., [1999] 2 SCR 3
Tested equality rights with same sex
marriage.