Canadian Constitution
From Free Talk Live
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Image:CanadianConstitution.jpgThe Canadian Constitution is the founding legal document of Canada. It is comprised of the British North America Act of 1867, the subsequent modifications made by the British Parliament until 1975, and the modifications written in the Canadian Constitution Act of 1982, which formally made the Canadian Constitution a Canadian Law. While it reprised most of the 1867 Act, it added four parts: the Canadian Charter of Rights and Freedoms, the Rights of the Aboriginal Peoples of Canada, the Equalization and Regional Disparities, and a Procedure for Amending Constitution of Canada. Enacted in 1982, it was applied from 1985. Its purpose, much like the American Constitution, is to protect Canadians from government over-extending itself into the rights of the individuals. The Constitution was not approved by referendum, but rather by every provincial Legislative Assembly. The province of Quebec still has not ratified the Constitution, which nonetheless applies to the province.
Sections
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Preamble
The Preamble for the Charter of Freedoms has become a target for censorship itself. It is;
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law
This is, of course, seen as the Government supporting a religious belief(or, more accurately, relgion in general). It could be counter argued that Canada does not have any section stating a separation of the church and state- merely you're free to express your beliefs, and your beliefs are protected.
Guarantee of Rights and Freedoms: Limitations Clause
The first section of the Canadian Charter of Rights and Freedoms is whats known as the "Limitations Clause"- it limits peoples and governments freedoms if its determined to be contary of a "free and democratic society"
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
This is often used against Hate Speech and Obsenity, but also has been used against the Government interferance. As the Government of Canada website states; "The rights and freedoms in the Charter are not absolute.They can be limited in order to protect other rights or important national values. For example, freedom of expression may be limited by laws against hate propaganda or pornography."
The Canadian Supreme Court has stated this Clause may be used if two situations are met:
the limit deals with a pressing and substantial social problem, and the government's response to the problem is reasonable and demonstrably justified.
Fundamental Freedoms
This section is used to outline our most Fundamental freedoms. They are;
(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.
This act is much like the American First Ammendment, in that it clearly(or even more clearly) states our most fundatmental rights- rights to believe what we want, be they conscience or relgious or otherwise- rights to express ourselves and the freedom of the press- freedom of peaceful assembly(non-violent protests)- and freedom of association, or being someones friend or being a part of NAMBLA does not mean you have commited a crime, even if they have.
All people, reguardless of weither or not they are a Canadian citizen or a corporation, have the freedom to these. However, once again, the First Section(The Limitations Clause) can override your right to these freedoms, or the 33rd Section(Notwithstanding Clause) can temporarily invalidate it.
Democratic Rights
The next three Sections deal with Democratic rights.
The Third Section deals with the right of every Canadian citizen to vote. This is one of the few that the Supreme Court have ruled that Section 33(Notwithstanding Clause) cannot deny temporarily. Also, it was recently(in Stephen Harper v. Canada, 2004) ruled that special interest groups do not have complete rights in promoting their beliefs. The Supreme Court ruled that Canadians must be presented with balanced various ideas before meaningfully participating in the election, and that special interest groups have limited spending to avoid a monopoly in political campaigns.
Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
The Fourth Section outlines the length of time a Canadian can be in either the House of Commons or legislative assembly before an election, being 5 years. However, it also states that in In time of real or apprehended war, invasion or insurrection, the houses have the right to vote and see if they wish to stay in office past this point(if more than one-thrid votes to pass).
(1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.
(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.
In the Fifth Section, it states that all members must merely sit at their appointed place once in a year, meanwhile the Constitution Act, 1867, section 20, stated they must actually participate once a year.
There shall be a sitting of Parliament and of each legislature at least once every twelve months.
Mobility Rights
The Sixth Section deals exclusively with mobility rights. It deals with the Canadians right to enter, exit, and move about Canada.
(1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
a) to move to and take up residence in any province; and b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
This is another right that has been determined cannot be nullifed by the 33rd Section(Notwithstanding Clause). Also, this right is often fighting with itself, as with the issue of extradition subsection 3 can be in direct oppostion to the rights proposed in subsection 1. In the example of Canada v. Schmidt and Re Federal Republic of Germany and Rauca, or more familairly with the listeners, Steve Kubby, extradition can lead to the death of the person- which is also in violation of the Seventh Section.
Legal Rights
These next rights refer to Canadian Legal Rights. The first of which, the Seventh Section, is very much so like the the "Life, Liberty, and Pursue of Happiness" quote from the American Declaration of Independance.
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.
The 'Right to Life' line clearly confirmed Canada's stance on Capital Punishment, having abolished it in 1927. This Section protects your right from the Government killing or tourtuing you, and the right to liberty is inpreted as "[touching] the core of what it means to be an autonomous human begin blessed with dignity and independence in matters that can be characterized as fundamentally or inherently personal." (R. v. Clay, 2003), and, lastly, security is taken as protection of the individual- that an individual has the right to mental health and the protection against anyone trying to screw with them.
The Eighth Section protects against unreasonable search or seizure. It is the most basic right of privacy, protecting citizens from intrusion of the state.
Everyone has the right to be secure against unreasonable search or seizure.
The Ninth protects against arbitrarily being arrested, or being arrested with cause or warrant.
Everyone has the right not to be arbitrarily detained or imprisoned.
The Tenth, on the otherhand, deals with your rights if you have been arrested. Once again, these are one of the magical ones that can be limited by the 33rd Section(Notwithstanding Clause). The second subsection part, the right to a legal counsel is very essential, as many people in the past have argued that they did not understand their rights, impacting several cases.
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor; (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.
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence 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 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; and (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.
TREATMENT OR PUNISHMENT.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
SELF-INCRIMINATION.
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.
INTERPRETER.
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
Equality Rights
EQUALITY BEFORE AND UNDER LAW AND EQUAL PROTECTION AND BENEFIT OF LAW / Affirmative action programs.
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.
Official Languages of Canada
OFFICIAL LANGUAGES OF CANADA / Official languages of New Brunswick / Advancement of status and use.
16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.
(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
ENGLISH AND FRENCH LINGUISTIC COMMUNITES IN NEW BRUNSWICK / Role of the legislature and government of New Brunswick.
16.1 (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.
(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.
PROCEEDINGS IN PARLIAMENT / Proceedings of New Brunswick legislature.
17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.
(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.
PARLIAMENTARY STATUTES AND RECORDS / New Brunswick statutes and records.
18. (1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.
(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.
PROCEEDINGS IN COURTS ESTABLISHED BY PARLIAMENT / Proceedings in New Brunswick courts.
19. (1) Either English or French may be used by any person in, or any pleading in or process issuing from, any court established by Parliament.
(2) Either English or French may be used by any person in, or any pleading in or process issuing from, any court of New Brunswick.
COMMUNICATIONS BY PUBLIC WITH FEDERAL INSTITUTIONS / Communications by public with New Brunswick institutions.
20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
(a) there is a significant demand for communications with and services from that office in such language; or (b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.
(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.
CONTINUATION OF EXISTING CONSTITUTIONAL PROVISIONS.
21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.
RIGHTS AND PRIVILEGES PRESERVED.
22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.
Minority Language Education Rights
LANGUAGE OF INSTRUCTION / Continuity of language instruction / Application where numbers warrant.
23. (1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province.
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary language instruction in the same language.
(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province
(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.
Enforcement
ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS / Exclusion of evidence bringing administration of justice into disrepute.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, 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.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
General
ABORIGINAL RIGHTS AND FREEDOMS NOT AFFECTED BY CHARTER.
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal people of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
OTHER RIGHTS AND FREEDOMS NOT AFFECTED BY CHARTER.
26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.
MULTICULTURAL HERITAGE.
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
RIGHTS GUARANTEED EQUALLY TO SEXES.
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
RIGHTS RESPECTING CERTAIN SCHOOLS PRESERVED.
29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.
APPLICATION TO TERRITORIES AND TERRITORIAL AUTHORITIES.
30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.
LEGISLATIVE POWERS NOT EXTENDED.
31. Nothing in this Charter extends the legislative powers of any body or authority.
Application of Charter
APPLICATION OF THE CHARTER / Exception.
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force. [Section 32 came into force on April 17, 1982; therefore, section 15 had effect on April 17, 1985.]
EXCEPTION WHERE EXPRESS DECLARATION / Operation of exception / Five year limitation / Re-enactment / Five year limitation.
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
Criticism
Seriously, if you couldn't find anything wrong.....
Like I said, this is a big topic and a project in progress, but some of the issues include its too much like the American Consitution, theres no additional protections or freedoms for the French society, both Affirmative Action and Healthcare are rights, it gives public money to Catholic schools but no other religious schools, and the length of time a representive can hold office before another election.
This isn't finished- if you want to finish it, knock yourself out- otherwise, I'll finish this later.
