Canadian Law Chapter 4 & 5

schoolstudycanada's version from 2018-06-26 02:00

Section 1

Question Answer
S.2 Fundamental freedoms- (a) freedom of conscience and religion (right to follow religious belief openly and without fear). Can be restricted if it restricts the rights and freedoms of others.
- (b) Freedom of Thought and Expression. One can believe what they want and express their opinions freely, unless their actions violate another's rights
- (c) Freedom of peaceful assembly (before this was protected by COMMON LAW)
- (d) Freedom of association. People can lawfully join the groups they want (as long as it is legal and not prohibited [RCMP, Federal lawyers, inmates in prison, restraining order])
Extraditioncountry surendering the accused to another country to stand trial
Reasonable limits clause S.1The rights and freedoms of the charter can be removed if reason is justified.
Notwithstanding clause S.33- Allows a government to declare legislation which violates the charter
- Applies to section 2 and 7-15.
- Lasts for 5 years before renewal
Role of courtsEnforce the laws created by the government
Role of government/parlimentCreate laws that reflect the values of society
Section 7 or the CharterRight to life, liberty, and security of the person.
Section 3,4,5.Section 33 does not apply to these.
Democratic rights. Everyone has the right to vote.
- Election must be held every 5 years
- federal and provincial legislatures must hold a session at least ONCE per year
Section 6(Mobility rights) Canadian citizens have a right to move in and out of a country and between provinces
Section 8Unreseonable search and seziure protection
Section 9Protection against arbitrary detention or imprisonment (cannot be held without justification)
Section 10Rights while under detention. Be informed of resons for arrest; be informed of right to lawyer
Section 11- right to trial in REASONABLE amount of time
- presumed innocent until proven
- fair trial
- right to bail unless there is cause to hold person in custody
- (for serious charges) right to trial by jury
- If tried and found not guilty, person cannot be charged for it again (double jeprody)
Section 12Protection against cruel and unusual punishment by the governmnt
Section 13Rights of witnesses in court (provides interpretors )
Section 15Equality rights (before the law and under the law)
Every citizen has the right to equal protection and benefit of the law. Helps those with accesibility issues.
Oakes Test- Reason for limiting the charter right must be shown to be important enough to justify the overriding
- It must be logical to limit the right to achieve the objective (if there is no other way)
- The right must be limited as LITTLE AS POSSIBLE
- The "strength" of the right limitation is proportional to the importance of the objective

Section 2

Question Answer
Entrenchment of charter rightsConstitution Act 1982. Pierre Trudeau helps add the Charter into the consitution
7/50 rule to change constitutionA descision with Seven provinces representing 50% of the population of Canada is required.
FranchiseStrange for: "Voting rights"

Section 3

Question Answer
Canadian Human Rights CodePassed in 1977
- Applies ONLY to federal government departments
Ontario human rights codeProvincial code. Protects individuals from discrimination from both individuals and private organisations (sex, marriage, race, physical disability)
Undue hardshipDiscrimination is allowed if the actions to prevent discrimination put the economic viability of an enterprise at risk
Poisoned work environmentA work environment corrupted by behavior of others
Bonafide job requirementSpecific skills are required for a job (e.g: blind pilot)
StereotypeAn idea created by generalisation/simplification of a group of people
PrejudiceUsing a stereotype to establish an opinion
DiscriminationUsing prejudice to separate groups/remove rights
Constructive discriminationInadvertently excluding certain group of people from employment (e.g: physical size requirement for firefighters)
Affirmative actionGiving "extra" rights to those who have been discriminated
Duty to accommodateSupreme court ruled that an employer is legally required to accomodate for employees individual needs. (Seems similar to "Undue Hardship")
Accommodations and Facilitiescannot be discriminated against on basis of age, marital status, or source of income (as long as it is legal)
Prima Facie(Latin: "At first glance") A legally convincing case (it can still be disproved by contrary evidence. i.e: "A good case")

Section 4

Question Answer
R. v. SharpeRobin Sharpe was charged with possession of child pornography. He used guarantee of freedom of expression to justify his actions. This did not go well in his favour.
R. v. AskovWhen Askov was charged with a number of offences, he had to wait a very long time before his trial began (around three years).
When his time came, he argued (using the charter) that he had waited an unreasonable amount of time and to stop the crown from taking actions against him (Section 11b).
Askov was dismissed and his case was used as a precedent for 50 000 other cases (which led to them being thrown out)
R. v. Oakes.1982
David Oakes was convicted of unlawful possession of narcotics with intention to traffic.
Oakes argued that the Narcotic Control Act placed burden (conviction) on the accused, which in turn violated section 11 of the Charter.
He was still convicted according to section 1 of the Charter.
However, his case provided the "Oakes test"
Sauve V. R.Fought for right of prisoners to vote
R. v. MorgentalerHenry Morgentaler began to perform abortions without committee approval. He was arrested in 1973 and argued that section 45 of the Canadian Criminal Code justified his actions (doctor is not criminally liable for operations performed in the best interests of the patient).
The jury found him not guilty; the judge overruled their decision.
1988, Morgentaler uses section 7 of the Charter of Canadian rights and freedoms (right to life, liberty and security of person).
The result of this was a decision that abortion law is unconstitutional as it interferes with a woman's physical and bodily integrity (breach of security) and it takes a long time to get permission from the committee.
(Section 287 of the Criminal Code of Canada says killing a child whilst it is in its mother's womb is not homicide as the fetus is not a "legal human being")