Understanding the Canadian Charter of Rights and Freedoms

Understanding the Canadian Charter of Rights and Freedoms

Stepping Back: The Foundations of Canadian Law

Starting with an example: A. C. v. Manitoba (2009)

Let's start with the Charter:

2. The Canadian Charter of Rights and Freedoms

This is the document that outlines the rights and freedoms that are guaranteed to every person in Canada (with some exceptions such as voting rights which are limited to citizens). The Charter is "embedded" in the Canadian Constitution which means that NO law or legal decision may violate its principles.

Under the Charter, every person in Canada is guaranteed certain rights and freedoms.

Some of these rights are limited to citizens (i.e. voting), others, such as the right to life, are guaranteed to all.

This case involves a 14 year old girl A. C. who is admitted to hospital with gastrointestinal bleeding due to Crohns disease. Doctors at the hospital recommend a blood transfusion to replace all of the blood she has lost, but A. C. is a Jehovah's Witness and according to this group's interpretation of the Bible, ingesting blood in any form is considered a sin prohibited by God. A. C. and her parents refuse the blood transfusion. However, the doctors involved believe that this refusal involves a significant risk to her health and possibly even her life and so they report her case to Child Protective Services. As a result, A. C. is taken into Protective Services and the state is made her legal guardian. She is now administerd the blood transfusion against her wishes. She makes a full recovery. After the recovery, A. C. sues the provinces arguing that they have violated her Charter Rights.

1. The Rule of Law

3. Stare Decisis

This is the legal principle that states that in democratic societies, the law should act as a nuetral, impartial, and objective arbiter of disputes. Everyone is equal before and under the law. No one is above or outside of the law.

In a common-law system like Canada's, judges are required to "stand by decided matters" in making legal decisions. Judges must look to previous decisions of similar cases and the lower courts must follow the decisions of higher courts. This is intended to keep the law predictable and consistent.

What do you think:

• Have A. C.'s rights been violated?
• Was it necessary to violate her rights?

There are some situations that may cause you to give up or to loose certain rights (i.e. joining the military, being convicted of a crime).

There are other situations where your rights may be limited. However, these limitations are only legal if they are "reasonable" and "justifiable"

Returning to our example case:

In groups take a look at your copy of the Canadian Charter of Rights and Freedoms as well as your summary of the case...

Which rights do you think may be violated in this case?

Ok, now that we know which rights are in question, how do we know if the limitations are reasonable or justified?

Finally, What happens if your rights have been violated?

The Importance of Precedence

In A. C. v. Manitoba, A. C. argued that three of her rights had been violated: Section 2 (a) Freedom of Conscience and Religion; Section 7 Right to Life, Liberty, and Security of Person; and Section 15 Equality Rights.

Section 1 of the Charter of Rights and Freedoms is called the "Limitation Clause" and it states that these rights are guaranteed, "[...] subject only to such limits prescribed by the law as can be demonstrably justified in a free and democratic society."

In order to test whether or not a limitation is reasonable, the Canadian courts have developed the Oakes Test.

Right to Life, Liberty and Security of Person, Example Case:

One of the benefits of challanging the a decision that may violate your rights is that if the courts rule in your favour, the decision or outcome that originally violated your rights should be reversed.

The decision of your case will also affect how other similar cases will be decided in the future. This means that you don't only make a difference for yourself, but for all of society.

But what if it is too late to reverse some of the harm that has been done? If the courts were to rule in A.C.'s favour what good would that do for A. C. ?

In a recent case, Henry v. British Colombia, a case of wrongful conviction, the courts ruled on whether or not a person could claim damages in court if their rights had been violated.

The Acorn Test

Equality Rights,

Sample Case:

Freedom of Religion, Example Case:

The CCLA has developed a simplified version of the Oakes test known as the Acorn test.

In a recent Supreme Court Case, Carter v. Canada, the courts ruled that the section of the Criminal Code that prohibits suicide violates that rights of those who are suffering intolerable and enduring pain. These people should be able seek a doctor's assistance in ending their lives. In this case the court ruled that the Right to Life, Liberty and Security of person includes the right to have autonomy over one's body and to make informed decisions about one's health. Every compitent adult has the right to make decisions acording to their values even if these decisions may seem unwise or foolish to others.

This test has three parts:

1. Why? What is the purpose of the limitation?

2. Will it work? Did it achieve the intended outcome?

3. What are the other unintended conscequences or side-effects?

In the Supreme Court Case, The Canadian Foundation for Children, Youth and the Law v. Canada, the courts ruled on a challange to the Criminal Code provisions allowing minimal use force against children by parents and educators. The courts found that while this could be considered discriminatory based on age, the limits to rights were justifiable if the force is minimal and reasonable, based on childrens' needs for a safe environment.

In the Supreme Court Case, Multani v. Commission scolaire Marguerite - Bourgeoys, the Courts ruled that a Sikh student should be allowed to wear his kirpan on his person while a school despite the school's ban on 'weapons'. The court noted that while it was reasonable to ban the kirpan given the safety risk it could pose, the limitations agreed upon by Multani, including that the kirpan be covered in a sheath and worn under his clothing, meant that any use of the kirpan, even accidently, was unlikely. Furthermore, the courts also noted that the violation to freedom in this case was considerable, especially given that Multani would be forced to leave public school.

What do you think?