The Canadian Charter
a mind map
Fundamental Freedoms
Case #1 Right to religious freedom in a
democratic state
An drug store in Calgary did not close on Sundays, the police charged the store with breaching the Lords day act, which specified that it was illegal to sell merchandise or conduct business on Sundays. The act represented the custom of Christianity to reserve Sunday as a day of rest.
The Supreme court ruled that the act violated the basic religious freedoms protected by the Charter. This is because the act required to obey laws of one faith which was Christianity. That restricted the freedom and religion of anyone who did not hold the same values of practices. In the Charter under this section, it states that anyone can follow any religion they’d like.
Case #2 Free speech and advertising
children under 13
Irwin Toy Ltd. aired tv advertisements for children's toys. Irwin Toy was charged with violations under the provincial Consumer Safety Act by the Québec consumer protection agency. The act did not legalize promotional ads directed at children under 13 years of age. The act was contested by Irwin Toy Ltd., arguing it unjustifiably restricted their freedom of speech.
The Supreme Court found that although the act constrained the toy company's freedom of speech, the restriction was fairly justifiable because the statute pursued an essential purpose of protecting children under the age of 13 who were especially vulnerable to commercial ads. Since Irwin Toy Ltd. will also sell children's toys to adults, this rule did not go further than it wanted to.
Mobility Rights
case #1 The Law Society of Upper Canada v Joel Skapinker
Joel Skapinker was a South African resident living in Canada who applied to practice law at the Ontario bar. As the Law Society Act required that he be a Canadian citizen, the bar denied his submission. Skapinker demanded that the clause of the Act requiring Canadian citizenship be considered to be inoperative on the ground that it had broken section 6 of the Charter which states that anyone can move anywhere in Canada and earn a living and be able to enter, stay in, or leave Canada
find the link to this case here
case #2 Black v Law Society of Alberta
A group of lawyers from a law firm in Ontario have attempted to create an Alberta branch. All the Alberta office members became members of the Alberta bar, as well as the Toronto office partners.
The Alberta Law Society Act was modified in reaction to this by the Province of Alberta to mandate that members of the bar be Alberta citizens who may only be partners in a single company.
The lawyers protested the amendments on the ground that they violated their right to freedom of association in accordance with Section 2 of the Charter and to freedom of mobility in accordance with Section 6. On the grounds that it violated freedom of mobility, Justice LaForest, writing for the majority, struck down the terms of the Law Society Act.
find the link to this case here
legal rights
case #1 Right to be secure against unreasonable search and seizure
The Edmonton Journal office, a branch of Southam Inc., was raided by federal investigators. Except for those in the newsroom, the investigators decided to check for any file in the house. They declined to provide detailed details on why they were there or what parts approved the search under the Combines Investigation Act. The act was protested by Southam Inc., claiming that it went against the right to be protected against arbitrary search or seizure.
The Supreme Court concluded that police and other law enforcement searches require a judge's warrant before a search can take place, as a general rule.
There must normally be "reasonable and probable reasons" to assume that a crime has been committed and that there is evidence to be found at the search site in order to get a warrant. Finally, the Court held that the act breached the Charter because it did not provide for an effective procedure or standard for the issuance of warrants. This decision set the stage for a strong Canadian approach to safeguarding the privacy of citizens and continues to be quoted to this day.
case #2 The right to be presumed innocent until proven guilty
Under the Drug Control Act, David Oakes was charged with possession of a narcotic. The act presumed that for the purpose of trafficking, those who had drugs owned them. The burden was on the defendant to prove that this was not his or her intention.
Oakes claimed that the right to be presumed innocent unless proved guilty was breached by the act. The Supreme Court agreed and ruled that the crime violated the presumption of innocence because it allowed the defendant to show his innocence, rather than prove his guilt to the Crown. In the end, since it was unfair to conclude that a person trafficked drugs simply because they owned small quantities of them, the Court struck down the offence.
It also laid down the foundation for deciding whether a law which restricts a right or freedom protected by the Charter can be demonstrably justified in a free and democratic society.
equality rights
case #1 Equality for people with disabilities
Susan Eldridge, John Warren, and Linda Warren were born deaf and would rather communicate using sign language. Although support for medically needed programs was provided by provincial legislation, no funding was available for sign language interpreters. They claimed that this violated their rights to freedom.
The Supreme Court agreed, concluding that their right to decency and respect were violated when the fair value of access to medical services based on their condition was denied to them. Individuals who are deaf will not be able to interact efficiently with their clinicians without sign language interpreters, which raises the likelihood of misdiagnosis and inadequate care.
The case demonstrates that equity for all does not always imply similar treatment. Disadvantaged groups can require additional resources or services in some circumstances. The need to overcome obstacles to encourage the full inclusion of people with disabilities in Canadian society needs to be considered by governments, employers and service providers.
case #2 Equality rights for same-sex partners
M. When her same-sex relationship concluded, she requested spousal help under the Family Law Act. The act describes a partner as a person who is lawfully married or an unmarried man or woman who has lived for at least three years with a member of the opposite sex.
M. argued that the act violated her rights to freedom because it treated unmarried opposite-sex partners differently than unmarried couples of the same sex. The Supreme Court ruled that couples in same-sex marriages were discriminated against under the act. The act suggested that their partnerships were less valuable than the relationships of opposite-sex partners, less deserving of respect and less worthy of legal defense. In the eyes of the law, this violation of the right and dignity of persons is just what the Charter was intended to defend against.
Because of this historic case, laws discriminatory against same-sex spouses across Canada have been amended.
democratic rights
case #1 Inmates’ right to vote
In the Canada Elections Act, a rule prevented all prisoners from voting in federal elections. The Supreme Court found that the rule unjustifiably violated the freedom of the prisoners to vote. It was replaced by a new rule which denied the right to vote for prisoners serving a term of two years or longer.
This new law was challenged by Richard Sauvé. The Court ruled that the government has not yet justified violating the freedom of the prisoners to vote. In other words, it was not proven by the government that there was a clear and immediate reason to refuse prisoners the right to vote.
As an outcome of this case, in Canada, Canadian inmates over 18 have the right to vote, regardless of the duration of their sentence. An significant way to educate them about the political ideals of the Canadian state is to encourage inmates to exercise their right to vote.
case #2 Right to vote for all non-resident Canadian citizens
Canadian residents who stayed overseas were Gillian Frank and Jamie Duong. Nevertheless, they maintained close ties to Canada and in federal elections wanted to vote. They could not do so because, for more than five years, the Canada Elections Act restricted Canadian citizens born outside of Canada from voting. The laws were protested as an unjustifiable violation of Section 3 of the Charter, which guarantees citizens' freedom to vote.
The majority of the Supreme Court ruled that the questioned laws were in violation of the freedom to vote and were not justified by Section 1 of the Charter. It was not minimally harmful to restrict the ability of non-resident residents to vote, and there was nothing to explain the option of five years as a limit, or to indicate how it was adapted to solve a particular issue. The majority argued that at a time when people were usually unable to travel as comfortably and widely as they do today and preferred to spend their life in one community, the residency requirement existed. People today, on the other hand, have an unparalleled capacity to travel around the globe and maintain communication. The Court clarified that citizenship determines the political community of Canada, not residency, which underlies the right to vote.