The Charter of Rights and Freedoms

Transcription

1 The Charter of Rights and Freedoms

2 Introduction - Sources of Rights and Freedoms In this section you'll learn about the importance of the Canadian Charter of Rights and Freedoms and human rights legislation to Canadians. You will examine specific sections of the Charter to see how they apply to real cases. Goal/Purpose/Objective analyse the impact of the following on Canadian society: the constitution, in particular the Canadian Charter of Rights and Freedoms, human rights legislation : Importance and Impact The Canadian Charter of Rights and Freedoms guarantees individuals certain rights and freedoms which governments or government agencies may not take away. The importance and the impact of the Charter of Rights and Freedoms are examined in detail here. Sources of Rights and Freedoms The focus of this section is the importance of the Canadian Charter of Rights and Freedoms and human rights legislation to Canadian society. Our rights are what the Canadian Constitution says every person can expect as fair treatment. Our freedoms are what the Constitution says every person shall be free to do. These are called our civil rights, but they apply to all our laws -- not just civil laws. We'll also compare civil rights with human rights, and take a look at how a 1982 change to the Constitution has kept the courts busy re-interpreting our laws. Civil rights ensure that each person is treated fairly and equally by all levels of law. Your civil rights are protected by the Constitution, especially the Charter of Rights and Freedoms, which is a very important part of the Constitution. This legislation protects you from being discriminated against by any federal or provincial law of Canada. If you believe one of the laws of Canada is violating the Charter, you can challenge the law in court. Human Rights Human rights laws protect you from being discriminated against by another person or organization on the basis of things such as your sex or race. Your human rights are protected by federal and provincial laws.

3 If you believe you have been discriminated against by any federally-regulated institution, such as a bank or federal government service, you can make a complaint to the Canadian Human Rights Commission. If you feel you have been discriminated against by a provincially-regulated institution or organization, such as a store or college, you can make a complaint to the Manitoba Human Rights Council. Importance and Impact affects our entire legal system. The Charter is the most powerful legislation we have. It's worth spending some time getting to know where it came from and how it works. All laws protect interests of some kind or another. For example, the law that makes bank robbery a crime protects the interests of the bank and the people who keep their money in the bank. The law punishing those who would prevent others from voting protects the interests of the voters. Interests which are given by and protected by the law are called "rights". Some rights, such as the right of employees to receive pay from employers are private rights, since they depend upon the particular agreement between employees (or their unions) and employers. But other rights, such as the right to vote, do not depend upon any private relationship. They belong to every citizen. These rights we usually call civil rights. A "freedom" may be discerned from a right, by saying it is what we are free to do unless we are prevented by law. In other words, we are completely free to do, think, and say anything we like unless it is against the law. Some things, however, should not be against the law in a free and democratic society, and those things are our basic freedoms. So, we are free to swing our fist wherever we want to, unless there is a danger it will hit someone's nose. The freedom to swing one's fist is not a freedom protected in a democratic society. Laws can be made prohibiting that behaviour. We are also free to worship according to the religion of our choice. That is a basic freedom, and laws may not be made prohibiting us from that choice. You will see that Canada has chosen to entrench, or fix protection of certain fundamental rights and freedoms into its constitution. In this way, Canada has broken away from its British tradition, and moved in the direction of other countries, most notably the United States. The United Kingdom does not have a written constitution, but the United States does and it also has a Bill of Rights entrenched in its constitution, just as Canada has a Charter in its. There are similarities between the documents protecting rights and freedoms in the United States and Canada, but there are also differences. For example, both documents protect the right to "life, liberty and security of the person," and the right not to be deprived of these things "except in accordance with the principles of fundamental justice" (Canada) or without "due process of law" (United States). But notice that the Canadian Charter does not protect the right to "property," and the United States' Bill of

4 Rights does. Neither does the Canadian Charter protect the right to "bear arms" while the United States does. You will see then that the concept of what are fundamental rights and freedoms is not always a universally agreed upon one. became law in 1982 as part of the Constitution Act, It is important to realize that the protection of rights and freedoms in Canada did not begin in 1982, however. Before that date certain rights and freedoms were protected by the Bill of Rights, passed by the Canadian parliament in It contained a list of human rights and fundamental freedoms to be recognized in Canada, but did not have much power as it was merely one of many federal statutes, and as such did not prevail over other statutes. Because the Charter is part of Canada's constitution, it sets the limits for laws which can be made in Canada. Notwithstanding Clause and Reasonable Limits Clause We will examine two circumstantial instances in the Canadian Charter of Rights and Freedoms where there can be possible and "temporary" limitations of rights and freedoms otherwise guaranteed in the Charter. Goal/Purpose/Objective to understand the function, reason, and impact of Section 33 (1), the Notwithstanding Clause Notwithstanding Clause and Reasonable Limits Clause There are important limitations of rights and freedoms guaranteed in the Canadian Charter of Rights and Freedoms. The balance of the Charter contains other general provisions; sections 25 to 31 deal with such things as aboriginal rights and protection for private schools, among other things. It also contains the very important section 33, called the "notwithstanding" section. This section says that parliament or a provincial legislature may pass laws which conflict with the Charter, if they use this overriding power. The government can include this override power in any statute and that statute will then operate "notwithstanding" section 2 or 7 to 15 of the Charter. This must be done specifically in the statute, however, and the override will be in effect for five years only, after which it would have to be re-enacted. Notice only some of the Charter rights may be overridden; democratic rights, mobility rights and language rights (sections 16-22) may not be. How do you think the public would respond if the government tried to pass a law that operated notwithstanding the Charter? Would it depend on which rights or freedoms were being overridden?

5 In 1988 the National Assembly in Quebec passed a law that said that all signs in the province which were visible from the street must be printed in French only. This law was contrary to the freedom of expression sections of the Charter, and the English minority in Quebec was upset by it. Do you agree? The "notwithstanding clause" in the Charter is in keeping with our tradition of Parliamentary Supremacy in Canada. This means that although courts may interpret, make, and even strike down laws passed by democratically elected members of parliament or the legislatures, ultimately, the responsibility for setting out the law of the land rests with governments, and not the courts. Parliament may make any law it wishes, even with the Charter in place, and according to the rule of law, all people are subject to it. Members of Parliament must remember, however, that they must answer to the people, at the next election time. : Fundamental Freedoms Section 2 of the Canadian Charter of Rights and Freedoms looks at "Fundamental Freedoms." We will look closely at those basic freedom principles and analyze their impact on the Canadian Society. Goal/Purpose/Objective To analyze the impact of Section 2 of the Charter on Canadian Society The Charter Fundamental Freedoms Section 2 guarantees important fundamental freedoms including "freedom of conscience and religion; freedom of thought, belief, opinion and expression, and other media of communication; freedom of peaceful assembly; and freedom of association. Fundamental Freedoms Section 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d)freedom of association. Neither parliament nor provincial legislatures may pass any laws limiting these freedoms, subject of course to section 1 discussed earlier. Let us look at these freedoms one by one.

6 Section 2. (a) freedom of conscience and religion; Everyone in Canada may freely choose his or her religion, or may choose to have no religion at all. Does this section include giving people the right to practice their religion by means which may be contrary to Canadian law otherwise? For example, some religious groups claim that indulging in certain illegal drugs is part of their religious ceremony. Should they be prosecuted for possession of or trafficking in those drugs, or should an exception be made for them, to allow them to practice their religion? In Manitoba there is a section of The Public Schools Act that provides for compulsory reading of the Lord's Prayer. It has been challenged as discriminatory against religious minorities. Generally speaking, people cannot be forced to accept a religion of the government's choice or to pray, attend a religious service or adopt religious beliefs. However, a citizen cannot excuse himself from obeying Canadian law on the basis of religious beliefs that run counter to the law. Section 2. (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; You will be aware of people in some other countries in the world who do not have this right, and who are prosecuted for publicizing beliefs contrary to their governments. In most democratic societies, however, freedom of speech and freedom of the press are very basic rights. Once again, however, they are not absolute, and are subject to section 1 limitations. In the 1930's the Province of Alberta passed an Act called "An Act to Insure the Publication of Accurate News and Information." This required all newspapers to publish all government statements relating to any policy or activity of the government within 21 days. The Supreme Court of Canada found that this Act was unconstitutional, or ultra vires, as only the federal government could pass laws which interfered with freedom of the press. With the Charter as part of Canada's constitution now, however, it is unlikely that either provincial legislatures or Parliament could pass such a law. (from Jennings & Zuber, 4th ed.) Section 2. (c) freedom of peaceful assembly; Section 2. (d) freedom of association. These freedoms together reinforce our right to join together with other people of common ideas, purposes and goals. You have heard on the news that this is not a freedom in other countries, where to come together in the organization of political parties, trade unions or religious organizations, or to hold peaceful rallies or demonstrations is a punishable offense. This freedom, like the others however, is subject to limitations. Notice as well that freedom of peaceful assembly is protected, but not freedom of an unlawful assembly, as defined in the Criminal Code of Canada. Should there be any other limitations on this freedom? For example, should the Ku Klux Klan be allowed to gather, march and hold demonstrations? Why or why not?

7 The Charter: Legal Rights Sections 7 to 14 of the Canadian Charter of Rights and Freedoms covers "Legal Rights." We will look at the impact of legal rights in this section of the Charter on our society. Goal/Purpose/Objective To analyze the impact of legal rights guaranteed y the Charter on Canadian Society The Charter Legal Rights Very broad protection of our legal rights is set out in section 7 of the Charter. Section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Before you can be deprived of your life (although capital punishment has been abolished in Canada for all intents and purposes now, it may be brought back by a vote of parliament), your liberty, or your security, you must have a fair trial in accordance with the principles of fundamental justice. Just what some of those principles specifically are is set out in sections 8 to 14 of the Charter. Before we look at those, you will notice that this section says "everyone" and not "every citizen". Who is "everyone"? The Supreme Court of Canada has heard arguments in the Borowski case (1988) that "everyone" includes a fetus. If so, it would mean that abortion could be a violation of the fetus' right to life, contrary to section 7 of the Charter. The court has decided not to answer this question in the absence of a law regarding abortion. What do you think? Section 8. Everyone has the right to be secure against unreasonable search and seizure. This right, along with the others is outlined in sections 8 to 12. The state has wide powers to search and seize under laws such as the Customs Act, the Income Tax Act and the Narcotic Control Act, as well as under ordinary criminal law. This section limits those powers to searches and seizures which are reasonable. The courts must determine what is reasonable. What do you think? When is it unreasonable for police to stop and search people they suspect of breaking the law? It is also important to note the wording of this section. "Unreasonable" searches or seizures are prohibited, but not "illegal" ones. Illegal searches may be found to be unreasonable or not, just as legal searches (i.e., those that are carried out according to law) may be unreasonable. It all depends upon the circumstances of the case.

8 Section 9. Everyone has the right to not be arbitrarily detained or imprisoned. The important word in this section is "arbitrarily". You may be imprisoned or detained (deprived of liberty by arrest, for example) after a trial if you are found guilty, or if a police officer has reasonable grounds for believing you are committing an offense, but you may not be imprisoned or detained arbitrarily, or unreasonably. For example, the police have the right to stop you and require you to give a breath sample (i.e., detain you) if they have reasonable grounds for believing you are driving impaired. That detention would not be arbitrary. Section 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus, and to be released if the detention is not lawful. Without these rights the police could arrest and jail you without telling you why and without allowing you to see a lawyer. Although these rights were respected at common law prior to the Charter, they are now entrenched in the constitution and have more power. Consequently, a police officer must tell you promptly why you are being put under arrest or detention for questioning, and many Canadian police forces are now following the American example of carrying a small card which informs you of your right to speak with a lawyer. Notice that this right applies on arrest or detention, and so the Supreme Court of Canada has held that on detention for the purpose of blowing into the breathalyzer, a person has the right to contact a lawyer without delay, and to be informed of that right. If the police behave improperly in arresting or detaining you, you may apply to a court for an order of habeas corpus. This is a Latin phrase meaning "have the body", and if it is carried out, a judge commands that the person be brought before the court and the reasons for detention are looked into. Habeas corpus is a centuries old common law remedy. You can see problems arising in the application of this section, particularly in interpreting the words "promptly" (section 10 (a)) and "without delay" (section 10 (b)). Suppose the police arrest a person on a highway at night, who cannot reach a lawyer. Can they administer the breathalyzer anyway? Section 11. Any person charged with an offense has the right (a) to be informed without unreasonable delay of the specific offense; Once you are charged with an offense, the Charter reinforces certain common law rights that you have. Section 11. (a) says that a person accused of an offense has the right to know exactly what

9 he or she is supposed to have done, so that a proper defense can be prepared. Once again though, what do you suppose the words "without unreasonable delay" mean? Section 11. Any person charged with an offense has the right (b) to be tried within a reasonable time; Section 11. (b) confirms the interests of both the accused and the public in having trials heard within a reasonable time. In this way an accused will not suffer by having an unproven charge hanging over her or his head for too long, and the public interest is protected so that trials are held before witnesses' memories fade, or evidence disappears. How long is "reasonable" however? How long does an accused person have to wait before a trial? Judges have ordered charges dismissed and people released under this section because the police and the prosecutors simply took too long to bring the accused to trial, especially where the accused was held in custody during the delay. Section 11. (c) Any person charged with an offense has the right not to be compelled as a witness in proceedings against that person in respect of the offense; This is part of what may be called the right to silence. A person accused of an offense may not be forced to testify at his or her own trial. You may give evidence if you want to, but there may be no unfavorable conclusions drawn by the judge or jury if you choose not to. This goes hand in hand with another very basic right, the presumption of innocence, which is part of section 11. (d). Section 11. (d) Any person charged with an offense has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. You could not imagine being tried by the very police officer who arrested you, or tried in secret, or not tried at all, before being found guilty of any offense - and these are the rights protected by this section. As we said earlier, anyone charged with an offense is presumed to be innocent, unless they are proven guilty. There are some types of cases, however, where these rights are not absolute. Firstly, where it is in the public interest, a judge may order that proceedings be held in private, or that the public may come in and watch but that the press not publish any information about the proceedings. Examples of this type of case would be where the protection of the identity of children is involved.

10 Further, there are some offenses contained in the Criminal Code which put the burden of proving innocence upon the accused. Some of these have been held to go against this section of the Charter and to be unreasonable, and others have been upheld. For example, it is an offense under the Narcotic Control Act to be in possession of a narcotic for the purpose of trafficking it. The section says that once the Crown has proven that you were in possession, it is up to you to then prove that your possession was not for the purpose of trafficking. The Supreme Court of Canada held in 1986 that the reverse onus created by this section (i.e., reversing the onus of proof from the Crown to the accused) was an unconstitutional infringement on the guarantee to the presumption of innocence, and therefore is of no force or effect. (R. v. Oakes). On the other hand, section 309 (1) of the Code says that anyone who, without a lawful excuse, the proof of which lies upon him, is in possession of tools or an instrument suitable for breaking into a place in circumstances which show that they were or will be used for breaking into a place, is guilty of an indictable offense. Once again, the onus is on the accused to show a "lawful excuse" for possessing the instrument. This section has been held by the Ontario Court of Appeal, and the Manitoba Court of Appeal not to offend the Charter's presumption of innocence. What do you think of these decisions? Section 11. Any person charged with an offense has the right (e) not to be denied reasonable bail without just cause. Even before the Charter came into effect, the Criminal Code contained provisions for bail, (the release from custody of someone charged, but not yet convicted of an offense). "Just cause" for detention until trial is shown by the Crown if it can be established that (a) there is reason to believe the person will not show up in court for his or her trial, or (b) if there is a danger to the public interest if the person is released. Section 11. Any person charged with an offense has the right (f) (except in the case of an offense under military law tried before a military tribunal), to the benefit of trial by jury where the maximum punishment for the offense is imprisonment for five years or a more severe punishment; (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under the Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. Section 11. (f) guarantees your right to have a trial by jury in serious criminal matters. Section 11. (g) says that you cannot be found guilty of any offence unless it was an offence at the time you did it. This means that if parliament passes a law making something a crime in December, 1988, you cannot be convicted of breaking this law if you did so in September, 1988, unless Parliament specifically makes the law retroactive or your action was an offence under

11 internationally recognized law. Section 11. (h) protects you from being tried for something more than once. Once you have been acquitted (found to be not guilty) or convicted and punished, you may not be tried again, except, of course, if an appeal court orders a new trial. In that case, however, it would be considered all part of the same case, and not starting again once the case is finished. Section 11. (i) simply gives the accused the benefit of the lighter possible sentence if a law is passed changing the penalty between the time the offence is committed and the person is sentenced. Section 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. Section 12 protects you from being subjected to any cruel and unusual punishment. Notice that the wording is "cruel and unusual". Do you think it is possible that the court can find a punishment to be either cruel or unusual, but not both? If so, would this section come into play? Section 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. Before the Charter, a witness who was asked to give testimony which might incriminate her or him, would object to answering such questions. In some countries, and according to common law, that would be the end of it, and the witness would not have to answer. This privilege was later withdrawn in Canada, and the person would be forced (on pain of being in contempt of court) to answer, but those answers could not be used against them in any later criminal trial. This provision of the Charter simply means that you will no longer have to object to answering any questions; you will automatically be protected from them being used against you later, unless you are charged with perjury, or giving false evidence. The Charter: Equality Rights We will look at Sections 15 and 28 on the Equality Rights or anti-discrimination clauses of the Canadian Charter of Rights and Freedoms. Goal/Purpose/Objective To analyze the impact of Equality Rights guaranteed by the Charter on Canadian society The Charter Equality Rights Many government practices have been re-evaluated and changed as a result of the Equality Rights section of the Charter. Sections 15 and 28 are the anti-discriminatory clauses. The prohibited grounds of discrimination and its impact will be examined in this section.

12 Equality Rights Section 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. This section protects all people in Canada from laws that discriminate on the basis of race, national or ethnic origin, etc. This means that neither Parliament nor the provincial legislatures may pass discriminatory laws, but it does nothing to stop individuals from discriminating. Remember, the Charter does not regulate the behaviour of individuals, merely the type of laws which can be made. For protection against discrimination by individuals, you must look to provincial human rights legislation. Although the Charter became law in 1982, this section did not come into force until 1985, as a compromise to those provinces which felt this section was unnecessary because provincial human rights legislation was sufficient protection against discrimination. The delay caused concern to women's groups, and that is why you find section 28 of the Charter which says, "notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons." Second 15. (2) deals with what we call "affirmative action programs." Because of historical or economic disadvantages, some groups of people do not have the same opportunity to compete for jobs or positions as the rest of the population, and so a certain number of places may be set aside for people of these disadvantaged groups, without contravening the equality section of the Charter. The Charter: Enforcement of Guaranteed Rights and Freedoms Although the Charter of Rights and Freedoms is as recent as 1982, it is part of the Canadian Constitution and all laws are based and on it or guided by its principles. There are basic mechanisms to ensure that individual civil rights are not violated. We will look at possible ways and guidelines to enforce the guaranteed rights and freedoms.

13 Goal/Purpose/Objective To understand how those whose rights have been infringed by government agencies can seek remedies The Charter: Enforcement of Guaranteed Rights and Freedoms is part of our Constitution. This means that all laws in the country must be guided by the principles in the Charter. That seems simple enough. Here's the tricky part. The Charter wasn't created until As you know, Canada had laws long before that. What if a law that has been around for over a century goes against the principles of the Charter? The law must be struck down removed from the statute books. Which laws can stay and which laws have to go is a legal question that's been keeping the courts busy for several years and will probably keep them busy for several more. Lawmakers have been dealing with the problem in two main ways: 1. Federal and provincial governments have been reviewing legislation and altering or removing statutes that are no longer acceptable. 2. Individuals have been challenging the laws in court. Challenges in court have given newspapers a lot to write about and Canadians a lot to think about. In a challenge, a person charged with an offence may defend her or his action by saying that the law itself is illegal. It's then up to the Supreme Court of Canada to decide whether or not the law violates the Charter. If the law violates the Charter, it must be removed or rewritten so that it conforms to the Charter (follows all the rules). Balancing the Rights of Society and the Rights of the Individual We will look at how the individual rights with the rights of others and the Canadian society as a whole are balanced. What happens when one person uses his or her rights and freedoms to threaten the rights and freedoms of others? Goal/Purpose/Objective To contrast the legal rights and responsibilities of individuals, groups and organizations in Canadian society

14 Balancing the Rights of Society and the Rights of the Individual Earlier, we talked about challenging the Charter in court. The real challenge concerning the Charter is to figure out how to ensure rights and freedoms without losing our ability to control actions that may be harmful to society. For example, the lawmakers who wrote the Narcotics Control Act did not set out to treat anyone unfairly. The high penalties and assumption of guilt were seen as drastic measures that were necessary to deal with a serious threat to society. The Charter says, however, that the possibility of serious crimes is not an excuse for violations of our civil rights. But what happens when one person uses his or her rights and freedoms to threaten the rights and freedoms of others? We don't exactly know how to handle this, but the case of R. v. James Keegstra gave us all a lot to think about. The "Reasonable Limit or Violation of Rights?" article about R.v. Keegstra, found below, will tell you detailed facts of the case. The Section Assignment will ask you to explain why this was a difficult case, and your opinion of the final outcome. Reasonable Limit or Violations of Rights? (Keegstra Case) How it all Started: In 1985, James Keegstra was charged under Section 319(2) of the Criminal Code. This section says it is an offence to willfully promote hatred against any identifiable group. At the time, Keegstra was an Alberta school teacher who: attributed various evil qualities to members of the Jewish faith, describing them to his pupils as "treacherous," "subversive," "sadistic," "money-loving," "power hungry," and "child killers." He further stated that Jewish people seek to destroy Christianity, are responsible for depressions, anarchy, chaos, wars and revolution, and created the Holocaust to gain sympathy. (Western Weekly Reports (1991) James Keegstra did not deny that he had done any of the above. Instead, he challenged the law, claiming that it was a violation of Section 2(b) of the Charter of Rights and Freedoms. This section of the Charter guarantees: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

15 Keegstra also challenged Section 319(3) of the Criminal Code. This section says that a person cannot be convicted of promoting hatred if she or he establishes that the statement is true. Keegstra claimed this was a violation of Section 11(d) of the Charter which guarantees: the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal The First and Second Trials The first judge to hear the case dismissed Keegstra's challenges and found him guilty of promoting hatred. In a unanimous ruling (all the judges on the panel agreed), the Alberta Court of Appeal overturned the decision. Here are some of the reasons they gave for their findings: They agreed that Section 319(3)(a) contradicted the right of a person to be presumed innocent. By asking Keegstra to prove his statements were true, the court was reversing the onus-that is, putting the burden of proof on the accused, not on the Crown. In support of this finding, the court referred to the section of the Narcotics Control Act that had been struck down for the same reason. The court concluded that Section 319(2) doesn't clearly enough define what is meant by spreading hatred. Such a broadly-defined law is a violation of the right to freedom of expression. In the opinion of the Alberta Court of Appeal, there are three categories of statements. A person who repeats a mistake or fact is protected by the Charter. At the other extreme, a person who willfully spreads harmful lies is not protected by the charter. The court ruled that Keegstra fell somewhere between. He was imprudent-unwise-in not taking reasonable steps to discover if what he said was true or not. There is no law saying that every Canadian must be wise. The court also found that Section 319(2) failed the proportionality test. In the opinion of the court, it wasn't likely that anyone believed Keegstra, therefore he had not actually done much harm. The Supreme Court Ruling In 1990, the Supreme Court of Canada overturned the decision of the Alberta Court of Appeal. They also added the point that criminal prosecutions do little to stop hate-mongers. Here are the main reasons given for overturning the Alberta Court of Appeal decision. Under Section 1 of the Charter, the Supreme Court has the right and the responsibility to set reasonable limits on rights and freedoms, as long as the limits can be justified in a free and

16 democratic society. In the opinion of the court, "substantial harm" can come from hate propaganda, so this is a case where reasonable limits are justified. The facts of a case are essential when determining the right to free expression. The Supreme Court ruled that Section 2(b) of the Charter should only apply when the party alleging an infringement demonstrates that the restricted activity supports rather than under-mines the principles and values upon which freedom of expression is based. The court ruled that Keegstra's opinions were not meant to support the democratic rights of people of the Jewish faith. The court points out that Section 319(2) actually gives quite a bit of freedom of expression. For example, private conversations are not subject to the law, the person must be promoting her or his point of view, and the person must be willfully promoting her or his point of view (doing it on purpose). As for the reverse onus question in Section 391(3)(a), the court ruled that this section is justified by the importance of preventing the harm caused by hate-promoting expression. The ability of the defendant to use the defense of "truth" should be taken as the law's attempt to give people as much freedom of expression as possible. Following the Supreme Court of Canada's decision, the Keegstra case was sent back to the Alberta Court of Appeal for determinations on other issues. In 1991, the Court of Appeal quashed the conviction and ordered a new trial. The Court of Appeal said that the trial judge erred in not allowing Keegstra to challenge potential jurors because of significant pretrial publicity. The new trial began in March 1992 and lasted 4 months. Keegstra was again found guilty and received a $ fine. Keegstra appealed to the Court of Appeal which allowed his appeal and ordered another new trial. Again Keegstra was convicted, and again the case made its way to the Supreme Court of Canada, with both sides appealing on various issues. The Supreme Court of Canada dismissed Keegstra's appeal and upheld the hate law provisions of the Criminal Code as reasonable limit on free speech. Finally, in 1997 the Alberta Court of Appeal sentenced Keegstra to a $ fine, a one-year suspended sentence and 200 hours community service. 1. What are our civil rights? What do they ensure and how are they protected? 2. What does the Charter protect us from? 3. What do human rights protect us from? How are they protected? 4. What are rights?

17 5. What is a freedom? 6. What is the difference between a freedom and a right? 7. Why does law limit freedom? 8. When did the Charter of Rights and Freedoms become law and with what act? 9. What was the Bill of Rights? Notwithstanding Clause and Reasonable Limits Clause 1. What does the "notwithstanding" section allow? 2. What rights cannot be overridden? 3. What is meant by the "Notwithstanding Clause"? 4. Many politicians and political commentators feel that the Notwithstanding Clause should be removed from the charter. Do you agree or disagree? Fundamental Freedoms 1. Should a religious group be allowed to consume an illegal drug and claim that it is part of their religion? What is your opinion? 2. What is the basic fundamental difference between Canada's old Bill of Rights and the new Charter? 3. On what basis was the province of Alberta stopped from forcing newspapers to publish government news releases in the 1930's? 4. List and briefly discuss the freedoms guaranteed by section 2 of the Charter. 5. What principles does the court follow when resolving cases involving freedom of conscience and religion? 6. What is your interpretation (from reading this section) of what fundamental freedoms are? Legal Rights

18 1. What is habeas corpus? 2. When is the onus on the accused to prove their innocence? What section of the criminal code is this? 3. Google the R. v. Oakes case. What happened? 4. "Just cause" for detention until trial is shown by the Crown if it can be established that (a) there is reason to believe the person will not show up in court for his or her trial, or (b) if there is a danger to the public interest if the person is released. Do you think these two reasons are "just cause" for keeping someone in custody before their trial, keeping in mind that they are innocent until proven guilty? 5. What is your interpretation (from reading this section) of what legal rights are? Equality Rights 1. Why did the equality rights section not come into effect until three years after the Charter? 2. What is your interpretation (from reading this section) of what equality rights are? 3. What are affirmative action programs. Can you give an example of one? The Charter: Enforcement of Guaranteed Rights and Freedoms 1. What happens if the Supreme Court of Canada finds that a law violates the Charter. Balancing the Rights of Society and the Rights of the Individual The "Reasonable Limit or Violation of Rights?" article tells you all about R. v. Keegstra. The following questions will help you check that you understand the facts of the case. 1. How long did it take to get a final decision on the Keegstra case? 2. Was this a criminal trial or a civil trial? In what way was Keegstra promoting his opinions? 3. Which is the best summary of Keegstra's defence? 4. What section of the Charter gives the courts the power to limit freedoms?

19 5. Summarize the findings of the Alberta Court of Appeal. 6. Summarize the findings of the Supreme Court of Canada. 7. What happened as a result of the Supreme Court decision?