Les dix ans de la Charte Canadienne des Droits et Libertés et le droit civil québécois: quelques réflexions. Volume 24, No 1. Danielle Pinard. Download. 17 items Canadian Charter of Rights and Freedoms/Charte canadienne des droits et libertés Ch. Search / Filtering. Text Search type to list type to list. CHARTE CANADIENNE DROITS LIBERTES GARANTIES JURIDIQUES [1 record]. Filter results by subject field Alphabetical list of terms.
|Published (Last):||12 June 2006|
|PDF File Size:||2.37 Mb|
|ePub File Size:||20.46 Mb|
|Price:||Free* [*Free Regsitration Required]|
Provincial and territorial executive councils. It forms the first part of the Constitution Act, The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all areas and levels of the government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was preceded by the Canadian Bill of Rightswhich was enacted in However, the Bill of Rights is only a federal statuterather than cgarte constitutional document.
As a federal statute, it can be amended through the ordinary legislative process and has no application to provincial laws. The Supreme Court of Canada also narrowly interpreted the Bill of Libdrtes and the Charre was reluctant to declare laws inoperative.
One of the most notable effects of the adoption of the Charter was to greatly expand the scope of judicial reviewbecause the Charter is more explicit with respect to the guarantee of rights and the role of judges in enforcing them than was the Bill of Rights.
The courtswhen confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism.
The Charter, however, granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials.
Article 11 de la Charte canadienne des droits et libertés
These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada’s parent country the United Kingdomwas based upon Parliamentary supremacy. As a result, the Charter has attracted both broad support from a majority of the Canadian electorate and criticisms by opponents of increased judicial power.
The Charter only applies to government laws and actions including the laws and actions of federal, provincial, and municipal governments and public school boardsand sometimes to the common law, not to private activity. Under the Charter, people physically present in Canada have numerous civil and political rights.
Most of the rights can be exercised by any legal person the Charter does not define the corporation as a “legal person” but a few of the rights belong vroits to natural persons, or as in sections 3 and 6 only to citizens of Canada.
The rights are enforceable by the courts through section 24 of the Charter, which allows courts discretion to award remedies to those whose rights have been denied. This section also allows courts to exclude evidence in trials if the evidence was acquired in a way that conflicts with the Charter and might damage the reputation of the justice system. Section 32 confirms that the Charter drs binding drouts the federal government, the territories under its authority, and the provincial governments.
The rights and freedoms enshrined in 34 sections of the Charter include:. Precluding all the freedoms and forming the basis of the Charter, the very first sectionknown as limitations clauseallows governments to justify certain infringements of Charter rights.
Every case in which a court discovers a violation of ses Charter would therefore require a section 1 analysis to determine if the law can still be upheld.
Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, and if the infringement can be “demonstrably justified. Keegstra and obscenity e.
Section 1 also confirms that the rights listed in the Charter are guaranteed. In addition, some of these rights are also subjected to the notwithstanding clause section The notwithstanding clause authorizes governments to temporarily override the rights and chartd in sections 2 and 7—15 for up to five years, subject to renewal.
The Canadian federal government has never invoked it, and some have speculated that its use would be politically costly. The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to end a strike and to protect an exclusively heterosexual definition of marriage,  respectively.
Note that Alberta’s use of the notwithstanding clause is of no force or effect, since the definition of marriage is federal not provincial jurisdiction. Generally, the right to participate in political activities and the right to a democratic form of government are protected:. Generally, people have the right to use either the English or French language in communications with Canada’s federal government and certain provincial governments. Specifically, the language laws in the Charter include:.
Many of the rights and freedoms that are protected under the Charter, including the rights to freedom of speechhabeas corpus and the presumption of innocence have their roots in a set of Canadian laws and legal precedents  sometimes known as the Implied Bill of Rights. Many of these rights were also included in the Canadian Bill of Rightswhich the Canadian Parliament enacted in However, the Canadian Bill of Rights had a number of shortcomings.
Unlike the Charter, it was an ordinary Act of Parliament, which could be amended by a simple majority of Parliament, and it was applicable only to the federal government.
Article 6 de la Charte canadienne des droits et libertés — Wikipédia
The courts also chose to interpret the Bill of Rights conservatively, only on rare occasions applying it to find a contrary law inoperative. The Bill of Rights did not contain all of the rights that are now included in the Charter, omitting, for instance, the right to vote  and freedom of movement within Canada. The centennial of Canadian Confederation in aroused greater interest lbertes the government in constitutional reform.
Said reforms would include improving safeguards of rights, as well as patriation of the Constitution, meaning the British Parliament would no longer have to approve constitutional amendments. Subsequently, Attorney General Pierre Trudeau appointed law professor Barry Strayer to research a potential bill of rights.
While writing his report, Strayer consulted with a number of notable legal scholars, including Walter Tarnopolsky. Strayer’s report advocated a number of ideas that were later incorporated into the Charter, including protection for language rights.
Strayer also advocated excluding economic rights. Finally, he recommended allowing for limits on rights. Such limits are included in the Charter’s limitation and notwithstanding clauses. During those years, Strayer played a role in writing the bill that was ultimately adopted. Meanwhile, Trudeau, who had become Liberal leader and prime minister instill very much wanted a constitutional bill of rights.
The federal government and the provinces discussed creating one during negotiations for patriation, which resulted in the Victoria Charter in This never came to be implemented. However, Trudeau continued with his efforts to patriate the Constitution, and promised constitutional change during the Quebec referendum.
He would succeed in with the fes of the Canada Act This enacted the Constitution Act, The inclusion of a charter of rights in the Constitution Act was a much-debated issue.
Trudeau spoke on television in October and announced his intention to constitutionalize a bill of rights that would include fundamental freedoms, democratic guarantees, freedom of movement, libertfs rights, equality and language rights. While his proposal gained popular support,  provincial leaders opposed the potential limits on their powers. The federal Progressive Conservative opposition feared liberal bias among judges, should courts be called upon to enforce rights.
During this time, 90 hours were spent on the bill of rights alone, all filmed for television,  while civil rights experts and advocacy groups put forward their perceptions on the Charter’s flaws and omissions and how to remedy them. Conservatives argued that elected politicians should be trusted instead. It was eventually decided that the responsibility should chwrte to the courts. At the urging of civil libertariansjudges could even now exclude evidence in trials if acquired libertfs breach of Charter rights in certain circumstances, something the Charter was not originally going to provide for.
As the process continued, more features were added to the Charter, including equality rights for people with disabilities, more sex equality guarantees and recognition of Canada’s multiculturalism. The limitations clause was also reworded to focus less on the importance of parliamentary government and more on the justifiability of limits in free societies; the latter logic was more in line with rights developments around the world after World War II.
In its chagte in the Patriation Referencethe Supreme Court of Canada had ruled there was a constitutional convention that some provincial approval should be sought for constitutional reform. As the provinces still had doubts about the Charter’s merits, Trudeau was forced to accept the notwithstanding clause to allow governments to opt out of certain obligations. Pressure from provincial governments which in Canada have jurisdiction over property and from the country’s left wingespecially the New Democratic Partyalso prevented Trudeau from including any rights protecting private property.
Nevertheless, Quebec did not support the Charter or the Canada Actwith “conflicting interpretations” as to why.
It could have owed to Quebec leaders being excluded canadienme the negotiation of the Kitchen Accordwhich they saw as being too centralist. It could have owed to provincial leaders’ objections to the Accord’s provisions relating to the oibertes of future constitutional amendment. However, Quebec’s opposition to the patriation package has led to two failed attempts to amend the Constitution the Meech Lake Accord and Charlottetown Accord which were designed primarily to obtain Quebec’s political approval of the Canadian constitutional order.
While the Canadian Charter of Rights and Freedoms was adopted init was not until that the main provisions regarding equality rights section 15 came into effect.
La Charte canadienne des droits et libertés by Iris Sagar on Prezi
The delay was meant to give the federal and provincial governments an opportunity to review pre-existing statutes and strike potentially unconstitutional inequalities. The typography of the physical document pictured here, and still distributed today, was typeset by Ottawa’s David Berman intentionally in Carl Dair’s Cartier typeface: The Charter has been amended since its enactment.
Section 25 was amended in to explicitly recognize more rights regarding Aboriginal land claimsand section There have also been a number of unsuccessful attempts to amend the Charterincluding the failed Charlottetown Accord of The Charlottetown Accord would have specifically required the Charter to be interpreted in a manner respectful of Quebec’s distinct societyand would have added further statements to the Constitution Act, regarding racial and sexual equality and collective rights, and about minority language communities.
Though the Accord was negotiated among many interest groups, the resulting provisions were so vague that Trudeau, then out of office, feared they would actually conflict with and undermine the Charter’s individual rights. He felt judicial review of the rights might be undermined if courts had to favour the policies of provincial governments, as governments would be given responsibility over linguistic minorities.
Trudeau thus played a prominent role in leading the popular opposition to the Accord. The task of interpreting and enforcing the Charter falls to the courts, with the Supreme Court of Canada being the ultimate authority on the matter.
With the Charter’s supremacy canadienns by section 52 of the Constitution Act,the courts continued their practice of striking down unconstitutional statutes or parts of statutes as they had with earlier case law regarding federalism. However, under section 24 of the Charter, courts also gained new powers to enforce creative remedies and exclude more evidence in trials.
Article 6 de la Charte canadienne des droits et libertés
Courts have since made many important decisions, including R. Morgentalerwhich struck down Canada’s abortion lawand Vriend v. Albertain which the Supreme Court found the province’s exclusion of homosexuals from protection against discrimination violated the equality rights under section In the latter case, the Court then read the protection into the law.
Courts may receive Charter questions in a number of ways. Rights claimants could be prosecuted under a criminal law that they argue is unconstitutional. Others may feel government services and policies are not being dispensed in accordance with the Charter, and apply to lower-level courts for injunctions against the government as was the case in Doucet-Boudreau v. Nova Scotia Minister of Education. A government may also raise questions of rights by submitting reference questions to higher-level courts; for example, Prime Minister Paul Martin ‘s government approached the Supreme Court with Charter questions as well as federalism concerns in the case Re Same-Sex Marriage Provinces may also do this with their superior courts.
The government of Prince Edward Island initiated the Provincial Judges Reference by asking its provincial Supreme Court a question on judicial independence under section In several important cases, judges developed various tests and precedents for interpreting specific provisions of the Charter. These include the Oakes test for section 1, set out in the case R.
Oakesand the now defunct  Law test for section 15, developed in Law v. Motor Vehicle Actvarious approaches to defining and expanding the scope of fundamental justice the Canadian name for natural justice or due process under section 7 have been adopted.