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6 Constitution & Charter

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Jen Rinaldi

on 22 October 2018

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Transcript of 6 Constitution & Charter

Resisting the Law:
The Constitution & Charter

Patriation, 1982
Founded on political and economic union of four provinces, outlined basic organization of the dominion
Established three branches of government
Allocated powers between levels of government
Charter of Rights & Freedoms
Constitution Act, 1867
Legal Theory
Constitution Act, 1867
Patriation, 1982
Charter of Rights and Freedoms
Unwritten constitutional principles: federalism, democracy, constitutionalism, rule of law, respect for minorities
Two elements of the Constitution: British North America Act, 1867; and Constitution Act, 1982
Founded on political and economic union of four provinces, and outlined organization of the dominion
Established three branches of government
Allocated powers between levels of government
Prime Minister Trudeau pledged to bring home the Constitution and implement a charter of rights
Road to Patriation 21:22-26:20: https://www.nfb.ca/film/road_to_patriation/
New Constitutional Elements
1) Declared the Constitution to be the supreme law of the land
2) Recognized and affirmed Aboriginal and treaty rights
3) Prescribed rules by which the Constitution could be amended
4) Entrenched the Charter of Rights and Freedoms
Meech Lake Accord, 1987 - Newfoundland and Manitoba failed to ratify
Charlottetown Accord, 1992 - failed referendum
Constitutional entrenchment met the limitations of the Canadian Bill of Rights, which was a narrowly interpreted statute
Applies to Parliament, provincial legislatures, federal and provincial governments
Anyone subject to Canadian law qualifies for (not all, eg democratic rights) Charter protections
Remedies include: striking down legislation, severing offending provisions, reading in, reading down, temporary suspension, constitutional exemption
Section 1 (Limitations Clause): The Charter guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
Section 33 (Override Clause): Governments allowed to insert a clause into any statute declaring that the statute will operate notwithstanding sections 2 and 7-15
Substantive Provisions
Fundamental freedoms (s. 2)
Democratic rights (ss. 3-5)
Mobility rights (s. 6)
Legal rights (ss. 7-14)
Equality rights (s. 15)
Language rights (ss. 16-22)
Minority language education rights (s. 23)
Recognition of Aboriginal Persons
Section 25: Charter guarantees cannot interfere with Aboriginal, treaty, or other rights and freedoms that pertain to Aboriginal peoples of Canada
How a Law is a Tool of Resistance:
Morgentaler & Section 7
The Morgentaler Affair 2:08-5:05, 10-11:40: https://www.nfb.ca/film/democracy_on_trial/
Morgentaler's private abortion clinic contravened s. 251(4) of the Criminal Code
Challenged s. 251(4) on Charter grounds
The Supreme Court of Canada determined s. 251(4) infringed on pregnant persons' s. 7 rights, particularly to security of the person
How Resistance Shaped Law:
COPOH & Section 15
The Coalition of Provincial Organizations of the Handicapped, a national cross-disability rights organization
Sent politicians letters and telegrams urging the construction of a more inclusive s. 15 equality clause
Organized demonstrations on Parliament Hill
Next Time
Resisting the Law: Human Rights
Full transcript