CHAPTER 3: PERSONAL RIGHTS

Intro: Is democracy perfect, fair, flawed?

- Democracy has challenges due to:
 Diverging opinions on issues with majority rule over minorities
 Trying to balance individual rights with societal objectives
- Charters aim to keep a balance between individual rights and societal objectives

The Canadian charter of rights and freedoms

 Entrenched rights:
- The constitution act, 1982, included the Canadian charter of rights and freedom
- The charter was “entrenched” in the constitution, thus rights protected
- TO CHANGE:
 Statute => simple majority
 Charter => constitutional amendment (7/50 formula, which means 7 provinces with
50% votes)
- Application:
 Government must respect the charter (section 32(1))
 Which government?
1) Federal
2) Provincial
3) Municipal
4) Any government associated organization and employee
 But violations between private individuals are not protected (for government only) /
(Provincial rights deal with private matters). EX: if you were fired at a job within a
private company for wearing a religious symbol, you cannot invoke the charters of
right as a defense (but you can in the Quebec charter).

 Protected rights:

1) Fundamental freedoms (s.2)

- Freedom of religion, thought, expression

2) Democratic rights (s.3-5)

- Right to vote and run for office

3) Mobility rights (s.6)

- Freedom to travel and work anywhere in Canada

4) Legal rights (s.7-14)

- Right to life, liberty, security and juridical protections
 - Right to a lawyer, innocent till proven guilty
- Euthanasia

5) Equality rights (s.15)

- Protection from discrimination

 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 oaks test (s.1): comes from Oakes Case facts: 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 section 8 of the narcotic
control act, which impose a burden on an accused to prove that he was not intending to
traffic. Argued that this section 8 reverse onus= person must prove that he did not
violate the right vs the plaintiff proving that he did, violates the presumption of
innocence contained in section !! of the charter.

- Section 1 of the charter allows government to limit rights if it can demonstrate:

 The objective of the limit has a strong societal importance. (if it is justifiable)
 Must show that the “means” chosen is the least intrusive. (if reasonable: least
intrusive) they have to prove this.

What is the difference between the Canadian and the Quebec Charter?
1. The Quebec charter (not a real charter, it’s a statute) can also be used for violations
between private individuals.
2. Quebec Charter is not entrenched in a constitution, so is easier to change.

 The Quebec charter of Human rights and freedom:

Protected Rights:
1) Fundamental Freedom and Rights: s1 to 9
S1: Rights to life and security
S2: Right to assistance:
- Except for fear or other valid reason
- When you’re in danger, a person has the obligation to help => call 911
S3: Freedom of expression opinion and religion, right to associate These rights are not absolute!
They stop when they intervene with other people’s rights.
S4-6: Safeguard of dignity and privacy = respect
EX: when you take somebody’s picture (It has to be either a public figure, newsworthy event, or
when you have permission).
EX2: You are allowed to record a conversation as long as you are part of it.

2) Protection from discrimination: S10 to 20.1

S10: Defines discrimination as an act based on distinction, exclusion or preference that causes a
right to be nullified or diminished. Limited: only the rights listed are protected. (page 50)
S11: No discriminatory symbols or signs
S12: can’t refuse a contract based on discrimination
S13: Discriminatory clauses in contracts are void
S15: Can’t deny access to public places (Any place that lets the public in not just owned by the
government) Unless “undue hardship” is proven (dangerous, loss of profit, have to try to
accommodate first)
S16: No employment related discrimination allowed
S18.1: No obligatory You don’t have to answer s10 questions in application forms and
interviews (such as age, gender, secuality…) except if:
- Aptitude and qualification related (S.20)
- Affirmative action problem: where the organization wants to balance out on an equity
as part of their program. EX: if they want to increase the % of women in the company.
S18.2: Can’t discriminate against job applicants due to past criminal record if:
- It’s not related to the job
- Obtained a pardon
S19: Equal pay for equal work, except if: based on aptitudes and qualifications (more university
degrees…), Based on equity plans (to balance genders in the company)
S20: Can discriminate in hiring if:
- Based on aptitudes and qualifications
- A community or religious organization
- It’s a non-profit organization
S20.1: Insurance and retirement plans can discriminate.

3) Political rights (S21-22)

4) Judicial Rights (S23-38)
5) Economic & social rights (S39-48)

 Enforcement (S49):
- Injunction (cessation of violation) => warning
- Material damages => damaged property
- Moral damages => psychological distress
- Punitive damages
 preventive role (money)
 How to calculate? Gravity in fault (more serious => more money); Debtor’s financial
situation (have insurance?) => don’t want them to go bankrupt
 To get it you have to show intent + No criminal record for the same case (can’t be
charged twice for the same case)
  Limitations:
S9.1 allows the government to limit rights:
1. set out in sections 1-9
2. Government has to justify limits under Oakes Test principles

 Case 1: Multani vs. Commission scolaire Marguerite Bourgeoys:

Legal issue: S3 and 9.1 Quebec Charter & S1 Canadian charter

Superior court:
- Declaratory jugement allowing kirpan with conditions
Court of appeal:
- Religion neither unique nor capricious
- But not absolute
- Applied S1 canadian charter and 9.1 Qc charter
- Additionally stated administrative law
- School board must educate but also ensure safety = security >= religion
Supreme court:
- Administrative law not relevant because violation of charter
- Appeal court made mistake in applying reasonableness standard
- Religious tolerance important Canadian value
- Safety facts + conditions = reasonable limits aka which measure limits less the rights
while still achieving the same goal (safety).

 Case 2: Syndicat Northcrest vs. Amselem

Legal issue: S.3 and 9.1 Qc charter

Case facts:
- Setting up of sukkahs on balconies for 9 days
- Northcrest claimed danger and property values
- Northcrest proposed common sukkah
- Northcress claimed signing building by-laws equal to waiving rights
- Amselem argued that the contract did not stipulate them waiving away their religious
rights
Surpreme court (5 vs 4 judges)

 Case 3: R vs. Kapp

Legal issue: S15(2) Canadian charter “amelioration of conditions”

Case facts:
- Communal fishing license to 3 aboriginal bands
- exclusive right to fish for 24h in the Fraser river
- appellant argued discrimination under s.15
Decision:
 - Not every distinction is discriminatory S15.2 (law to protect and balance)
- Programs designed to ameliorate the disadvantage doesn't’t mean reverse
discrimination
 does not promote the idea that those who were banned from fishing during those
24H are less capable or worthy of recognition or value as human beings or as
members of Canadian society

 Case 4: Therrien vs. The minister of justice

Case facts:
Legal issue S18.1 and S18.2 Qc charter
- 1970 Therrien sentenced to one year in prison for assisting 4 FLQ members
- Practiced law between 1976 and 1996
- Pardoned in 1987
- Tried 5 times between 1989 and 1996 to be appointed judge.
- Appointed judge in 1996 (did not mention the criminal record in the 5 th trying to be
appointed judge)
- Record discovered and removal process started
- Therrien argued violation of S18.1 and 18.2
Decision:
- Court found S18.1 not valid because criminal record is not in article 10’s list
- Court found S18.2 not valid because of “the nature, characteristics and requirements” of
the position.
- Court also found non-discrimination via art 20 (no qualification) to be judge you have to
be objective.

 Case 5: British Colombia vs. BCGSEU:

Legal issue: S20 Qc charter

Case facts:
- 7 years ago Meiorin was hired to be forest firefighter
- Was fired 3 years later due to the new fitness test (failed the 4 th –last test and failed by
49.9 seconds)
- The issue aerobic standard and discrimination

Issue? Aerobic standards and discrimination. Security/ safety vs. discrimination.

- Court found need for a 3-step test to determine a discriminatory standard is a bona fide
occupational requirement (BFOR) similar to Oakes test: what are the qualification that
makes you qualified for the job
- BFOR:
 step 1: is the standard rationally connected to the job performance - yes
 step 2: was it adopted in good faith – yes
  step 3: demonstrates that the standard is reasonably necessary – argument of
BCGSEU: accommodating individual would impose undue hardship upon the
employer

Decision:
- The standard is rationally connected to the job = matter of life and death
- it was adopted in good faith = for the good for all
- Was the standard too high? Yes 65% of woman failed this test while 30% of men failed.
 Too high and thus you are discriminating against more than half the population of
women. Biologically, women are not built the same way as men plus the standard
set was not necessary to perform the job.
 Lower the standards because they were based on the worse case of storm.