Jurisdiction and Enforcement (Unit 2 Set 2)
Published on Jan 25, 2017
Understanding the sphere of influence the Charter has, and how the rights within it are enforced.
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PRESENTATION OUTLINE
Section 32 of the Charter
- 32. (1)This Charter applies a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
The Charter has 34 sections that identify the relationships between people, organizations and companies in Canada.
Section 32(1) defines the jurisdiction of the charter
Section 32(1) defines the jurisdiction of the charter
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Jurisdiction of the Charter
- The Charter has jurisdiction over the following areas:
- All branches and levels of government.
- Organizations operated by government.
The charter only applies to government and government-related activities.
A serious problem facing the courts is determining just where government stops and government institutions acting in a private capacity start. Are government institutions such as universities, schools, hospitals, and crown corporations such as the CBC - affected?
It appears clear that when such institutions are acting as an arm of government, the Charter does apply.
Certainly, the Charter applies to the legislation creating these institutions and to the services provided directly by government departments, including the police and military.
Reference:
Yates, R., Bereznicki-Korol, T., & Clarke, T. (2005). Business law in Canada. Toronto: Pearson/Prentice Hall.
A serious problem facing the courts is determining just where government stops and government institutions acting in a private capacity start. Are government institutions such as universities, schools, hospitals, and crown corporations such as the CBC - affected?
It appears clear that when such institutions are acting as an arm of government, the Charter does apply.
Certainly, the Charter applies to the legislation creating these institutions and to the services provided directly by government departments, including the police and military.
Reference:
Yates, R., Bereznicki-Korol, T., & Clarke, T. (2005). Business law in Canada. Toronto: Pearson/Prentice Hall.
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Jurisdiction of the Charter (cont)
- The Charter does not have jurisdiction to protect rights if discrimination occurs in situations that do not involve the government.
Federal and provincial human rights codes offer protection for individuals where the offending act was committed by private individuals or agencies.
We will be learning about human rights codes in Chapter 5.
Example:
If a grocery store refused to serve someone because of their race/gender/ethnicity/sexual orientation, etc., the Charter would not apply. The individual would have to seek recourse through the provincial human rights act.
We will be learning about human rights codes in Chapter 5.
Example:
If a grocery store refused to serve someone because of their race/gender/ethnicity/sexual orientation, etc., the Charter would not apply. The individual would have to seek recourse through the provincial human rights act.
Enforcement
- 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Section 24 (1) of the charter provides people with the ability to take the government and its agencies to court if they believe that their Charter rights have been infringed upon by the government.
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Enforcement (cont)
- To determine whether a rights case has value to be heard, the court considers the following questions:
- Was the right infringed or violated by the government or its agencies?
- Is the right in question covered under the Charter?
- Is the violation or infringement within a reasonable limit?
Before the charter was placed in the constitution act the role of the Supreme Court of Canada was to interpret existing law rather than uphold the rights of citizens.
Today for many of the cases appealed to the Supreme Court of Canada the issue of whether a right has been violated is paramount to determine whether the case has merit to be heard.
Justices can either strike down the offending legislation using section 52 of the constitution act or provide a certain amount of time for the legislation to be changed.
Constitution Act, 1982 Section 52
"The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. "
In a criminal case, the courts can exclude certain types of evidence, order a new trial, or dismiss the case completely.
The third question asks the court to determine if there is a violation, whether this violation can be justified as a reasonable limit under section 1 of the Charter.
Today for many of the cases appealed to the Supreme Court of Canada the issue of whether a right has been violated is paramount to determine whether the case has merit to be heard.
Justices can either strike down the offending legislation using section 52 of the constitution act or provide a certain amount of time for the legislation to be changed.
Constitution Act, 1982 Section 52
"The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. "
In a criminal case, the courts can exclude certain types of evidence, order a new trial, or dismiss the case completely.
The third question asks the court to determine if there is a violation, whether this violation can be justified as a reasonable limit under section 1 of the Charter.
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Reasonable Limits
- The Charter guarantees our rights
- Rights are not absolute but subject to "Reasonable Limits" - Section 1 of Charter
- The criteria for determining reasonable limits is known as the Oakes Test.
The criteria for reasonable limits stated in S.1 of the Charter were established in R. v. Oakes in 1986. A case you will read in class.
The four criteria came to be known as the Oakes test.
If the government wants to pass a law that limits a Charter right, it must show that this limitation can be justified in a free and democratic society.
The four criteria came to be known as the Oakes test.
If the government wants to pass a law that limits a Charter right, it must show that this limitation can be justified in a free and democratic society.
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The Oakes Test (Part 1)
- The reason for limiting the charter right must be shown to be important enough to justify overriding a constitutionally protected right.
- The measure carried out to limit the right must be reasonable and logically connected to the objective for which it was enacted.
These four tests (The next two are on the following slide) continue to guide the court in making decisions on when it is justifiable to limit a right or freedom that is constitutionally guaranteed in the Charter.
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The Oakes Test (Part 2)
- See previous slide.
- See previous slide.
- The right must be limited as little as possible.
- The more severe the rights limitation, the more important the object must be.
These four tests continue to guide the court in making decisions on when it is justifiable to limit a right or freedom that is constitutionally guaranteed in the Charter.
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Notwithstanding Clause (Sec 33)
- Notwithstanding = in spite of.
- Allows the federal and provincial governments limited power to pass laws that can be exempt from section 2 and sections 7 to 15
The notwithstanding clause allows each of the provinces and the federal government to override the basic rights contained in section 2 and section 7 through 15 of the charter simply by stating that the new legislation operates notwithstanding or regardless of the charter.
Section 2 contains our fundamental freedoms such provisions as freedom of conscience and religion, of thought and belief, of opinion and expression and assembly and association.
Section 7 through 15 contain our legal and equality rights such as the right to life liberty and security of the person, security against unreasonable search and seizure, arbitrary imprisonment in detention and the right not to be discriminated against in court.
Section 2 contains our fundamental freedoms such provisions as freedom of conscience and religion, of thought and belief, of opinion and expression and assembly and association.
Section 7 through 15 contain our legal and equality rights such as the right to life liberty and security of the person, security against unreasonable search and seizure, arbitrary imprisonment in detention and the right not to be discriminated against in court.
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Notwithstanding Clause (Cont)
- When the notwithstanding clause is invoked the government must:
- Identify the particular law.
- Identify the section(s) of the charter being overridden.
- Reinvoke the exemption every 5 years in order for it to stay in place.
It would appear that section 33 weakens the charter of rights and freedoms considerably. It was originally hoped that most provinces would find the political cost too great to override the charter in this way and as a result would refrain from doing so, for the most part, this is been the case.
A "sunset clause" is applied to the operation of section 33 if the notwithstanding clause is invoked. The statute overriding the Charter must be reenacted by the legislative body every five years. This forces a re-examination of the decision to override the charter after an election where the use of the notwithstanding clause may be made a political issue.
An example of NWSC Use:
The Notwithstanding clause has been used very rarely and has only been invoked by provincial governments. In fact the notwithstanding clause has only been used 3 times outside of Quebec. Here is the most recent example from Alberta.
On March 16, 2000, the Alberta government passed Bill 202, which amended the provincial Marriage Act to include an opposite-sex only definition of marriage as well as the notwithstanding clause in order to insulate the definition from Charter challenges. However, provinces may only use the notwithstanding clause on legislation they otherwise have the authority to enact, and the Supreme Court ruled that the definition of marriage is within the exclusive domain of the Canadian Parliament.
A "sunset clause" is applied to the operation of section 33 if the notwithstanding clause is invoked. The statute overriding the Charter must be reenacted by the legislative body every five years. This forces a re-examination of the decision to override the charter after an election where the use of the notwithstanding clause may be made a political issue.
An example of NWSC Use:
The Notwithstanding clause has been used very rarely and has only been invoked by provincial governments. In fact the notwithstanding clause has only been used 3 times outside of Quebec. Here is the most recent example from Alberta.
On March 16, 2000, the Alberta government passed Bill 202, which amended the provincial Marriage Act to include an opposite-sex only definition of marriage as well as the notwithstanding clause in order to insulate the definition from Charter challenges. However, provinces may only use the notwithstanding clause on legislation they otherwise have the authority to enact, and the Supreme Court ruled that the definition of marriage is within the exclusive domain of the Canadian Parliament.
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What do you think?
- “The notwithstanding clause will be a red flag for opposition parties and the press. That will make it politically difficult for a government to override the Charter. Political difficulty is a reasonable safeguard for the charter.”
- Allan Borovoy, Canadian Civil Liberties Association
Do you think that federal and provincial governments should have access to the notwithstanding clause?
We will discuss this in class.
We will discuss this in class.
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For your consideration: (Interveners)
- Interveners are known as friends of the court (3rd party participants).
- They have a special interest in the proceedings and are often allowed to promote their views.
- As an example Mothers Against Drunk Drivers (MADD) express the view that drunk drivers must be held accountable for their behaviour.
Should interveners be allowed to promote their views in court cases?
We will discuss this in class.
We will discuss this in class.
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