The criminal law prohibiting hate speech, which violates the freedom of expression, is an example of a law the government has argued needs to exist to protect Canadians, and the courts have agreed. Introducing the Charter into our Constitution inevitably led to greater power and responsibilities for the courts.
Initially, when the Charter was a new legal tool, the question was how could it be used? A mere two days after the Charter came into force, Combines Investigation officers tried to search the offices of the Edmonton Journal and seize information, relying on an authorization certificate they presented.
Southam Inc. The case quickly made its way to the Supreme Court of Canada where the Court agreed that the search violated section 8 of the Charter and was therefore not constitutional. The decision was also significant because the Court gave an interpretation to the purpose and meaning of the Charter :. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action.
Even with that purpose in mind, the process of Charter analysis is not straightforward. Deciding when laws violate Charter rights is often a tough task for the courts.
It is not surprising then that even within the courts, different conclusions can be reached by the judges. The Hutterians said this law infringed on their religious belief. On the other hand, two justices found the harm to the rights of the Hutterians was dramatic, and noted that the impact was not on just their belief system but on the life of the community.
The greatest impact of the Charter, by sheer numbers, has been in the area of criminal law. Charter- protected legal rights have meant greater safeguards for accused persons, including the right to speak to a lawyer, to not be detained arbitrarily, and to be free against unreasonable search and seizure. Section 11 b of the Charter guarantees that any person charged with an offence has the right to a trial within a reasonable time. Outside of the criminal law sphere, the courts have interpreted equality rights as well as the right to life, liberty, and security of the person in the Charter.
In their final report, the students relied on the Charter to support their conclusions. Choose a graphic from our resources section and share it on social media. The roots of the Charter lie in the desire for Canada to gain full control over the Constitution. Because Canada's original Constitution was an act of the British Parliament in , only Britain had the power to change it. In , Canada and its provinces began a collaborative process to bring home the Constitution and to incorporate a Charter of Rights and Freedoms.
A committee of Canadian Parliamentarians, representing all parties, considered more than 1, written submissions and over testimonies to develop the final Charter. This action gave Canada control over its Constitution and guaranteed the rights and freedoms in the Charter as the supreme law of the nation. The Charter allows you to challenge any government action that you believe violates your rights or freedoms.
The most complex and controversial Charter-based challenges end up before the Supreme Court of Canada. In the past, these challenges have set legal precedents and also inspired significant changes to federal, provincial and territorial laws. Examples of Charter-related cases. The Charter recognizes that even in a democracy, rights and freedoms are not absolute. Section 1 of the Charter allows the government to put limits on rights and freedoms if that limit:.
They can only do this if they clearly state to the public that they are passing a law that contradicts the Charter. All levels of government must review and re-enact this declaration to Canadians every five years, or the limits automatically no longer exist. See also Greater Vancouver Transportation Authority v.
See also Douglas College ; Lavigne v. British Columbia , [] 2 S. The Charter applies to the executive and legislative branches of the federal and provincial governments Dolphin Delivery , supra , at paragraph See also Operation Dismantle v.
The Queen , [] 1 S. Note however, that the privileges of Parliament and the legislatures that are necessary for their proper functioning as legislative assemblies are immune from Charter scrutiny since they themselves are constitutionally entrenched New Brunswick Broadcasting Co. Vaid , [] S. The Charter also applies to regulations, by-laws, orders, directives, rules, etc.
The Charter applies to municipalities and their actions Godbout v. Longueuil City , [] 3 S. Municipal councils are institutionally distinct from the provincial governments but exercise delegated law-making authority.
They exhibit many of the indicia of a government actor: they are democratically elected by members of the public and are accountable to their electorate; they possess a general taxing authority; they are empowered to make, administer and enforce laws within a defined territorial jurisdiction; and they derive their existence and law-making powers from the provincial legislature Godbout , supra , at paragraph There is no Supreme Court decision that discusses section 32 1 in relation to Aboriginal governments.
However, the Federal Court of Appeal has held that the Charter applies to a community election code adopted by a First Nation. Kahkewistahaw First Nation , D. The result in that case was reversed by the Supreme Court, but on the basis of a finding of no violation of the substantive Charter right at issue; the Supreme Court made no comment on section 32 1 , but did not question that the Charter applied [] 2 S.
Similarly, lower courts have found that Band Councils acting according to custom and those operating under the Indian Act both derive their authority from the Indian Act and therefore are subject to the Charter Clifton v.
Hartley Bay Indian Band , [] F. See also: Nakochee v. Linklater , [] O. Sakimay Indian Band Council , [] F. Horseman , [] A. Council of the Fort McMurray , [] F. The actions of government officials qua government officials are subject to the Charter.
Ministers and government officials acting pursuant to legislative authority are subject to the Charter Slaight Communications Inc. Davidson , [] 1 S.
Individuals who normally act as agents of government will not attract the application of the Charter when acting outside the scope of their duties. Thus, a Crown Attorney who acts as an agent of government in his official capacity is not bound by the Charter when he institutes his own personal defamation action — even though his action may have been funded by the government — where the proceedings were instituted in his own capacity and it was not demonstrated that the government had requested or required him to institute these proceedings or that it had controlled their conduct Hill v.
Church of Scientology of Toronto , [] 2 S. There are myriad public and quasi-public institutions that may or may not be part of government. Each situation must be examined on its facts to determine the level, degree and purpose of control exercised by government Douglas College , supra ; Lavigne , supra.
The Charter applies to the former. That an entity provides an important public service that is part of the legislative mandate of a level of government is not by itself sufficient to trigger the application of the Charter McKinney , supra ; Stoffman , supra ; Eldridge , supra ; Buhay , supra. And see GVTA , supra , at paragraph 22, regarding the governmental nature of public transit.
Crown corporations or agencies are likely to be considered government actors if established by government to implement government policy Douglas College, supra. Canada , [] 1 S.
The Supreme Court has yet to provide a full discussion of the basis on which the Charter applies to elementary and secondary schools.
In a case involving an administrative search of a computer by school officials and a transfer of the computer to a police officer, the Crown had conceded in the lower courts that the Charter applied to the school officials R.
Cole , [] 3 S. See also R. The majority in Multani v. The Charter does not apply to non-governmental entities created by government for the purpose of legally enabling them to do things of their own choosing such as private corporations, hospitals and universities McKinney, supra ; Stoffman, supra.
Governments cannot circumvent the Charter, however, simply by granting powers to non-governmental entities or by pursuing governmental initiatives through means other than the traditional mechanisms of government action: Eldridge , supra , at paragraph 42; Godbout , supra , at paragraph 56; GVTA , supra , at paragraph Although the Charter generally does not apply to actions of non-governmental entities, specific actions of a non-governmental actor can attract Charter scrutiny where there is a high degree of control exercised by the government in the accomplishment of the act or because the government retains responsibility for the act in question.
These acts would include:.
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