RIGHTS AND

FREEDOMS

CLU3M Unit
2

RIGHTS AND FREEDOMS

Rights and Freedoms are two distinct legal terms- see handout
Recognition of rights and freedoms has been a struggle
throughout history
There are 5 basic questions when discussing rights and what
they are:
1.
2.
3.
4.

What rights should people have?

Should some rights be absolute (unrestricted)?
Is everyone entitled to the same rights?
What is the power of the state in creating and protecting
rights
5. How can people ensure that governments do not
unreasonably restrict their rights and freedoms?

HISTORY
http://www.youthforhumanrights.org / this video can do a
better job than me
1215 Magna Carta- basic individual rights for the people of
Eng lan d
1869 Bill of Rights gave British parliament supremacy over
the monarchy and exten ded political righ ts (free elections
and freedom from cruel treatment)
1776 Declaration of Independence (U S A)
1789 d eclaration of the Rights of Man (France)
Both of these documents stated that all people had human
righ ts including inalien able rights of liberty and equality

HISTORY
1 9 4 8 Un iv e r sa l De cl a r a ti on of H um a n R ight s- f un da m en ta l
f ree dom s t o a ll l iv in g peo ple inc luding f ree dom o f th ou ght ,
o pi nion, expressio n, reli gion a nd pea ce ful a ssem bl y a n d
a ssoc i a ti on
E v ol ut io n of th e h u m a n r i ght s co nce pt i n C a na da h a sn t be en a s
sm oot h a s w e th in k
Sla v er y
Li m i te d f ra n ch i se
D isc ri m in a tor y pr a ct ic es a ga i nst a bo r igina ls, no n w h it es a nd
i m m igr a nt s
Ant i- Asi a n t re a t m e n t
Wom e n
Se e ha n do ut

BILL OF RIGHTS
First attempt to codify rights and freedoms across
Canada was the Canadian Bill of Rights 1960
John Diefenbaker
Recognized the right to life, liberty, and security of
the person
Freedom of religion, speech, assembly and
association
Freedom of the press
The right to counsel and the right to a fair hearing
Had severe limitations- only applied to federal
matters and could be overruled since it was only a
bill not a law

ENTRENCHMENT OF RIGHTS
Pierre Trudeau- once PM he began the process of entrenching
rights and freedoms principles into law
If rights and freedoms are entrenched- they are protected,
regardless of which government is in power
It also means it becomes constitutional law therefore any law
passed by the government must be consistent with the terms
set out in the Charter
Shifted power from supremacy of parliament to the courts
and the Charter
For Trudeau to pass this he had to agree to an override
clause (we will discuss this further)

JURISDICTION AND ENFORCEMENT

The Charter applied to all levels of government,
Crown corporations, banks and any other government
regulated organization
If there is a situation that doesnt involve the
government it doesnt apply
Example: I own an apartment and you apply to rent. I
look at you and slam the door in your face and say I
dont rent to people like you. You cannot rely on the
Charter
but you can relay on something else

JURISDICTION AND ENFORCEMENT

Section 24- people have the right to challenge the
government in court if they believe that their Charter
rights have been infringed or violated by the
government
The Charter is written in general terms
Judges can interpret and expand on it- allow the
Charter to grow It is up to the Supreme Court alone to determine if
there are rights violations

ROLE OF THE SUPREME COURT

To determine whether a rights case has merit, the
SCC considers these questions:
1. Was the right infringed or violated by the
government?
2. Is the right in question covered by the Charter?
3. Is the violation or infringement within a reasonable
limit?
(uhoh)

ROLE OF THE SUPREME COURT

If the SCC fi nds that a Charter right or freedom has
been violated, they may strike down the lawrequiring parliament to rewrite the law
It is really all about interpretation- Case
Law/Precedent
The SCC (whom you do not vote for) can overrule
laws passed by the people that we elect (democracy?)
R. v. Tessling