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CLU3M Uni t 2


Ri ghts and Freedoms are two di sti nct l egal terms- see handout

Recogni ti on of ri ghts and freedoms has been a struggl e
throughout hi story

There are 5 basi c questi ons when di scussi ng ri ghts and what
they are:

1. What ri ghts shoul d peopl e have?
2. Shoul d some ri ghts be absol ute (unrestri cted)?
3. Is everyone enti tl ed to the same ri ghts?
4. What i s the power of the state i n creati ng and protecti ng ri ghts
5. How can peopl e ensure that governments do not unreasonabl y
restri ct thei r ri ghts and freedoms?
http: //www. youthforhumanri ghts. org/ thi s vi deo can do a better
j ob than me

1215 Magna Carta- basi c i ndi vi dual ri ghts for the peopl e of
Engl and

1869 Bi l l of Ri ghts gave Bri ti sh parl i ament supremacy over the
monarchy and extended pol i ti cal ri ghts (free el ecti ons and
freedom from cruel treatment)

1776 Decl arati on of Independence (USA)
1789 decl arati on of the Ri ghts of Man (France)

Both of these documents stated that al l peopl e had human ri ghts
i ncl udi ng i nal i enabl e ri ghts of l i berty and equal i ty
1948 Uni versal Decl arati on of Human Ri ghts- fundamental
freedoms to al l l i vi ng peopl e i ncl udi ng freedom of thought,
opi ni on, expressi on, rel i gi on and peaceful assembl y and
associ ati on

Evol uti on of the human ri ghts concept i n Canada hasn t been as
smooth as we thi nk

Sl avery
Li mi ted franchi se
Di scri mi natory practi ces agai nst abori gi nal s, non whi tes and
i mmi grants
Anti - Asi an treatment

See handout
Fi rst attempt to codi fy ri ghts and freedoms across Canada
was the Canadian Bi l l of Ri ghts 1960

John Di efenbaker

Recogni zed the ri ght to l i fe, l i berty, and security of the person
Freedom of rel i gion, speech, assembly and associ ation
Freedom of the press
The ri ght to counsel and the ri ght to a fai r hearing

Had severe l i mi tations- onl y applied to federal matters and
coul d be overruled si nce i t was onl y a bi l l not a l aw
Pi erre Trudeau- once PM he began the process of entrenchi ng
ri ghts and freedoms pri nci pl es i nto l aw

If ri ghts and freedoms are entrenched- they are protected,
regardl ess of whi ch government i s i n power

It al so means i t becomes consti tuti onal l aw therefore any l aw
passed by the government must be consi stent wi th the terms set
out i n the Charter

Shi fted power from supremacy of parl i ament to the courts and
the Charter

For Trudeau to pass thi s he had to agree to an overri de cl ause
(we wi l l di scuss thi s further)
The Charter applied to al l l evels of government, Crown
corporations, banks and any other government regul ated
organi zation

If there i s a si tuation that doesn t i nvol ve the government i t
doesn t apply

Example: I own an apartment and you apply to rent. I l ook at
you and sl am the door i n your face and say I don t rent to
people l i ke you. You cannot rel y on the Charter

but you can rel ay on something el se
Secti on 24- people have the ri ght to chal lenge the government
i n court i f they bel i eve that their Charter ri ghts have been
i nfri nged or vi ol ated by the government

The Charter i s wri tten i n general terms

Judges can i nterpret and expand on i t - al l ow the Charter to

It i s up to the Supreme Court al one to determine i f there are
ri ghts vi ol ations
To determine whether a ri ghts case has meri t, the SCC
consi ders these questions:

1. Was the ri ght i nfri nged or vi ol ated by the government?

2. Is the ri ght i n questi on covered by the Charter?

3. Is the vi ol ati on or i nfri ngement wi thin a reasonable l i mit?
If the SCC fi nds that a Charter ri ght or freedom has been
vi ol ated, they may stri ke down the l aw- requi ring parl i ament
to rewrite the l aw

It i s real ly al l about i nterpretation- Case Law/Precedent

The SCC (whom you do not vote for) can overrule l aws passed
by the people that we el ect (democracy?)

R. v. Tessling