Category: articles

In Canada v. Bedford three current or former prostitutes applied for a declaration that sections 210, 212(1) and 213(1) of the Code infringe the right to life, liberty and security of the person pursuant to section 7 of the Charter. The Supreme Court of Canada agreed. The three impugned sections, concerned with preventing public nuisance and exploitation of prostitutes, were unconstitutional as offending section 7 and failed to pass section 1 scrutiny. The court found that these provisions did not merely impose conditions on how prostitutes operate, they in fact, imposed dangerous conditions on prostitutes thereby preventing people (the prostitutes) working in a risky but legal activity, from taking steps to protect themselves from those risks.

Continue reading “Canada’s Prostitution Laws”

The Supreme Court of Canada has made a strong statement in support of religious freedom, even when it relates to fears that religious freedom may place some students at risk in the educational system. In Multani2 the court was required to deal with the competing interests between security of all students and the religious practice of Orthodox Sikhs requiring them to wear a “kirpan”, a religious object that resembles a dagger and is made of metal, at all times. The student in question accidentally dropped his kirpan that he was wearing under his clothing in the school he was attending.

Continue reading “Religious Freedom Part 2”

Until the recent Supreme Court of Canada decision in Mounted Police Association of Ontario v. Canada1 RCMP members were not permitted to unionize or engage in collective bargaining. They had been excluded from the regime governing labour relations for federal public service members. Consequently, they were non-unionized federal employees. The court held, however, in a 6-1 decision, that section 96 of the RCMP regulations infringed subsection 2(d) of the Charter. The court found that the infringement was not justified under section 1. If section 96 of the RCMP regulations had not been repealed prior to the decision it would have been declared to be of no force or effect. The court found that subsection 2(d) protects three classes of activities:
Continue reading “Freedom of Association”

This section provides that the “Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This section permits an accused, including a Corporation, to seek an order from the court that legislation is invalid by reason of a violation of the Charter.
Continue reading “Remedies Under the Charter: Section 52”

There are two specific sections that provide for the remedies available when anyone alleges a breach of an accused’s Charter rights. These two important sections are sections 24 and 52.

Section 24

This remedy section provides that anyone whose rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Continue reading “Remedies Under the Charter: Section 24”

Section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Section 13 of the Charter provides that 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.¹ However, in relation to this protection, anyone wishing to avail themselves of it should give serious consideration to the Supreme Court of Canada’s controversial decision in R. v. Nedelcu²
Continue reading “Section 12 of the Charter”

They are as follows:

• Section 8: the right to be secure against unreasonable search and seizure.

• Section 9: the right not to be arbitrarily detained or imprisoned.

• Section 10: the right on arrest or detention to be informed promptly of the reason for the arrest or detention, and, to retain and instruct counsel without delay, and to be informed of that right, and, to have the validity of that detention determined by way of habeas corpus, and to be released if the detention is not lawful.

• Section 11: outlines several different rights for any person charged with an offence; namely:

1. to be informed without unreasonable delay of the specific offence.

2. to be tried within a reasonable time.

3. not to be compelled to be a witness in proceedings against that person in respect of that offence.

4. to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial court.

5. not to be denied reasonable bail without just cause.

6. 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.

7. if found guilty of the offence, and if the punishment for the offence has been varied between the time of the commission and the time of sentencing, to the benefit of the lesser punishment.

Continue reading “Other Protected Charter Rights”

The most important right offered to Canadian citizens is found in section 7 of the Charter. It promises every Canadian, “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. The reason this is the most important right under the Charter is that all the specific rights outlined in sections 8 to 14 of the Charter, are supported by this overall right to fairness under the Charter.
Continue reading “The Importance of Section 7 of Charter”

The Charter of Rights and Freedoms (“the Charter”)

Journalists in Canada, have occasionally, attempted to use the protections outlined in Section 2 of the Charter to prevent courts from ordering them to disclose their sources of controversial news stories, particularly in cases where journalists appeared to be relying on information from persons involved in or knowledgeable about those who were involved in crime. Journalists have largely been unsuccessful in protecting their sources. Our courts have most often determined that there is no constitutional immunity for ‘confidential’ journalistic sources, and accordingly, a judicial order compelling disclosure of sources did not violate this section of the Charter.

Continue reading “Journalists and The Charter”

The Charter of Rights and Freedoms (“the Charter”)

The Charter guarantees the rights and freedoms of Canadians, subject only to reasonable limits prescribed by law, as can be demonstrably justified in a free and democratic society. When or if The Charter imposes a “limit” or restriction on the Charter rights of any Canadian, whether by statute or regulation or common law, the limit places an evidentiary onus on the government to prove that the limit on individual rights is reasonable and demonstrably justified in this free and democratic society.
Continue reading “The Charter”