CHAPTER 4
Personal Rights
Chapter Objectives
At the end of this lesson, you should understand:
What rights existed prior to the Constitution Act, 1982
The importance of the Canadian Charter of Rights and
Freedoms
The “entrenchment” principle
The importance of the Quebec Charter of Human Rights and
Freedoms
How limitations may be imposed on Charter rights
The personal rights found in the Civil Code of Quebec
Introduction
Is Democracy Perfect, Fair, Flawed?
Democracy has challenges due to:
1. Diverging opinions on issues with majority rule over minorities
2. Trying to balance individual rights with societal objectives
Charters and personal rights legislation aim to keep a balance
between individual rights and societal objectives
The Canadian Charter of
Rights and Freedoms
Entrenched Rights
Canada founded on Parliamentary Supremacy thus, no Charter
in BNA Act, 1867
Believed rights would be protected by:
1. Elected government
2. Legislation
Scholars argued an implied Bill of Rights existed
A restriction on citizen’s rights (i.e. expression, association, etc.) would
undermine parliamentary system, be counter to BNA Act, and thus illegal
The Canadian Charter of
Rights and Freedoms
Entrenched Rights
History shows us these protections were not enough
The Constitution Act, 1982, included the Canadian Charter of
Rights ad Freedoms
The Charter was “entrenched” in the Constitution, thus rights
protected
To Change:
Statute simple majority
Charter constitutional amendment
7/50 Formula
The Canadian Charter of
Rights and Freedoms
Application
Government must respect the Charter (Section 32(1))
Which government?
1. Federal
2. Provincial
3. Municipal
4. Any government associated organization and employee (i.e. hospitals,
schools, etc.)
But violations between private individuals are not protected
The Canadian Charter of
Rights and Freedoms
Protected Rights
1. Fundamental Freedoms (s.2)
Freedom of religion, thought, expression
R. v. Big M Drug Mart Ltd
2. Democratic Rights (s.3 - 5)
Right to vote and run for office
Sauvé v. Canada
3. Mobility Rights (s.6)
Freedom to travel and work anywhere in Canada
Canadian Egg Marketing Agency v. Richardson
The Canadian Charter of
Rights and Freedoms
Protected Rights
4. Legal Rights (s.7 - 14)
Right to life, liberty, security and judicial protections
Rodriguez v. British Columbia
5. Equality Rights (s.15)
Protection from discrimination
Discrimination exists under these conditions:
i. Differential treatment based on personal traits
ii. Treatment listed in s.15
iii. Treatment imposes a burden or perpetuates a stereotype
Gosselin v. Québec
The Canadian Charter of
Rights and Freedoms
Protected Rights
6. Official Languages of Canada (s.16 - 22)
Right to use English or French with any federal government body
R. v. Beaulac
7. Minority Language Education Rights (s.23)
The right to education in English or French
Mahé v. Alberta
The Canadian Charter of
Rights and Freedoms
Limitations
1. The Notwithstanding Clause (s. 33)
Government can limit rights found in s.2 and s.7 – 15.
Must renew the limitation every five years (sunset clause)
2. The Oakes Test (s.1)
Section 1 of the Charter allows government to limit rights if it can demonstrate:
Oakes Test
1st The objective of the limit has a strong
societal importance
2nd Must show that the “means” chosen
is the least intrusive
The Canadian Charter of
Rights and Freedoms
Oakes Case Fact
Oakes, was charged with possession of a narcotic for the purpose of
trafficking
Oakes argued he had bought the ten vials of hashish oil for his own use
Oakes challenged the validity of s. 8 of the Narcotic Control Act, which
imposed a burden on an accused to prove that he was not intending to
traffic
Argued that this s. 8 reverse onus violates the presumption of innocence
contained in s. 11(d) of the Charter
Passed first part of test: Court found drug trafficking to be a justified
reason for reverse onus
Failed second part of test: Court found that imposing this reverse onus
on possession of any drugs and any amount of drugs was too broad
The Quebec Charter of
Human Rights and Freedoms
Quebec vs. Canadian
What is the difference between the two Charters?
1. Quebec Charter can also be used for violations between private individuals
2. Quebec Charter not entrenched in a Constitution so easier to change
Note: Has special status, a 2/3 National Assembly vote is required to
change it rather than simple majority
The Quebec Charter of
Human Rights and Freedoms
Protected Rights
1. Fundamental Freedoms and Rights (s.1 – 9)
S.1 Right to life and security
S.2 Right to assistance
S.3 Freedom of expression, opinion and religion, right to associate
S.4-6 Safeguard of dignity and privacy
S.7-9 Enjoyment and protection of property and information
The Quebec Charter of
Human Rights and Freedoms
Protected Rights
2. Protection from Discrimination (s.10 – 20.1)
S.10 Discrimination defined as:
An act that nullifies or impairs a right
But, only rights listed are protected
S.11 No discriminatory symbols or signs
S.12 Can’t refuse to contract based on discrimination
S.13 Discriminatory clauses in contracts are void
The Quebec Charter of
Human Rights and Freedoms
Protected Rights
2. Protection from Discrimination (s.10 – 20.1)
S.15 Can’t deny access to public place
Unless “undue hardship” proven
S.16 No employment related discrimination allowed
S.18.1 No obligatory S. 10 questions in application forms and interviews, except if:
Aptitude and qualification related (s.20)
Based on affirmative action program
S.18.2 Can’t discriminate against job applicants due to past criminal record
if:
Not related to job
Obtained a pardon
The Quebec Charter of
Human Rights and Freedoms
Protected Rights
2. Protection from Discrimination (s.10 – 20.1)
S.19 Equal pay for equal work between genders, except if:
Based on aptitudes and qualifications
Based on pay equity plans
S.20 Can discriminate in hiring if:
Based on aptitudes and qualifications
If a community or religious organization
S.20.1 Insurance and retirement plans can discriminate
The Quebec Charter of
Human Rights and Freedoms
Protected Rights
3. Political Rights (s.21-22)
Right to vote and stand for election
4. Judicial Rights (s.23-38)
Right of accused to a fair and impartial process, free of civil rights abuses
5. Economic and Social Rights (s.39-48)
Affords protection for children, employees, spousal obligations to each other
and to the elderly
The Quebec Charter of
Human Rights and Freedoms
Enforcement
Section 49 allows victims to sue for:
1. Cessation of violation (injunction)
2. Material damages
- damaged property
3. Moral damages
- psychological distress
4. Punitive damages
- to teach a lesson
The Quebec Charter of
Human Rights and Freedoms
Limitations
Section 9.1 allows government to limit rights set out in sections 1 to 9
Government has to demonstrate validity of limits under Oakes Test
principles
The Quebec Civil Code
Protected Rights
1. Enjoyment and Exercise of Civil Rights (art. 1 - 9)
Juridical personality is gained upon being born alive and viable
Each person has a patrimony
Includes right to life, integrity, reputation and privacy
Must exercise rights in “good faith”
2. Integrity of the Person (art. 10)
No interference without consent
The Quebec Civil Code
Protected Rights
3. Care (art. 11 - 25)
Adults can refuse all care, even if life at risk
Tutor authorizes minor’s care needs
Minor over 14 can consent or even refuse care that is non-life threatening
Adults can donate body parts or submit to medical tests for free only
4. Respect of Children’s Rights (art. 32 - 34)
Children have a right to protection, security and attention from parents
5. Respect of Reputation and Privacy (art. 35 - 41)
Property, name, image and communications are all protected (s.36)
The Quebec Civil Code
gal?
e
is l
Protected Rights Is t
h
When can you take somebodies picture?
gal?
le
this When:
Is
1. It’s a public figure
2. It’s a newsworthy event
3. You have permission
The Quebec Civil Code
Protected Rights
6. Change of Name (art. 57 - 70)
Anybody over 14 years old can request a change of name for serious reasons
7. Change of Designation of Sex (art. 71 - 73)
Anybody who has undergone a gender change can change first name and birth
certificate designation