THE CHARTER:THE CHARTER:

R v. Oakes pg. 39R v. Oakes pg. 39

Question OneQuestion One

Oakes was charged with the unlawful possession Oakes was charged with the unlawful possession of a narcotic for the purpose of trafficking.of a narcotic for the purpose of trafficking.

Question TwoQuestion Two

Once the Crown proved that Oakes had drugs Once the Crown proved that Oakes had drugs in his possession, the burden of proof switched in his possession, the burden of proof switched to Oakes to prove that he did not have the to Oakes to prove that he did not have the drugs for the purpose of trafficking. Oakes drugs for the purpose of trafficking. Oakes argued that when this burden of proof argued that when this burden of proof switched to him, he was denied his right under switched to him, he was denied his right under section 11(d) of the Charter to be presumed section 11(d) of the Charter to be presumed innocent until proven guilty.innocent until proven guilty.

Question FourQuestion Four

Chief Justice Dickson commented: “Mr. Oakes Chief Justice Dickson commented: “Mr. Oakes is compelled by section 8 to prove he is is compelled by section 8 to prove he is not not guilty of the offence of trafficking. He is thus guilty of the offence of trafficking. He is thus denied his right to be presumed innocent and denied his right to be presumed innocent and subjected to the potential penalty ofsubjected to the potential penalty of

Question FourQuestion Four

life imprisonment unless he can rebut the life imprisonment unless he can rebut the presumption.” Given the fact that an accused presumption.” Given the fact that an accused can face a prison sentence, it is important that can face a prison sentence, it is important that the Crown face the heavy burden of proof that the Crown face the heavy burden of proof that the accused committed the crime. Student the accused committed the crime. Student responses will vary about the reasons responses will vary about the reasons Canadian society values the presumption of Canadian society values the presumption of innocence so highly.innocence so highly.

History of the CharterHistory of the Charter

Before 1982, Canada had the Before 1982, Canada had the Canadian Bill of Canadian Bill of Rights. Rights. Although it was a step in the right direction, Although it was a step in the right direction, the the Bill of RightsBill of Rights did not protect people completely. did not protect people completely. Under the Under the Bill of Rights, Bill of Rights, a person could challenge a person could challenge another piece of legislature, however nothing another piece of legislature, however nothing prevented government officials from amending, prevented government officials from amending, appealing or simply overriding the bill. Also, no appealing or simply overriding the bill. Also, no new legislation (before 1982) had to follow this bill, new legislation (before 1982) had to follow this bill, protecting the rights of those involved.protecting the rights of those involved.

Enter Charter…Enter Charter…

The The Canadian Charter of RightsCanadian Charter of Rights and and FreedomsFreedoms was introduced to Canadian law in was introduced to Canadian law in 1982 under the reign of Prime Minister of 1982 under the reign of Prime Minister of Pierre Elliot Trudeau. As a part of Canada’s Pierre Elliot Trudeau. As a part of Canada’s new formal new formal ConstitutionConstitution, every law in the , every law in the country, past, present or future, had to country, past, present or future, had to conform to the provisions in the Charter.conform to the provisions in the Charter.

The Charter: first few sectionsThe Charter: first few sections

1.1. The The Canadian Charter of Rights and Canadian Charter of Rights and FreedomsFreedoms guarantees the rights and freedoms guarantees the rights and freedoms set out in it subject only to such reasonable set out in it subject only to such reasonable limits prescribed by law as can be limits prescribed by law as can be demonstrably justified in a free and demonstrably justified in a free and democratic society.democratic society.

Translation:Translation:There is little to nothing above this documentThere is little to nothing above this document

Fundamental FreedomsFundamental Freedoms

2.2. Everyone has the following fundamental freedoms:Everyone has the following fundamental freedoms:

a. freedom of conscience and religiona. freedom of conscience and religion

b. freedom of though, belief, opinion and b. freedom of though, belief, opinion and expression, including freedom of the expression, including freedom of the press and other media of press and other media of communicationcommunication

c. freedom of peaceful assembly; c. freedom of peaceful assembly;

andand

d. freedom of associationd. freedom of association

Democratic RightsDemocratic Rights

3.3. Every citizen of Canada has the right to vote Every citizen of Canada has the right to vote in an election of members of the House of in an election of members of the House of Commons or of a legislative assembly and to Commons or of a legislative assembly and to be qualified for membership therein.be qualified for membership therein.

Translation:Translation:

Everyone over a certain age can Everyone over a certain age can

both vote and run for government.both vote and run for government.

Democratic Rights Cont’edDemocratic Rights Cont’ed

4.4. (1) No House of Commons and no legislative assembly shall (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for continue for longer than five years from the date fixed for the return of the writs of a general election of its members.the return of the writs of a general election of its members.

4.4. (2) In time of real or apprehended war, invasion or (2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuance is notthe legislature beyond five years if such continuance is notopposed by the votes of more opposed by the votes of more than one third of the members of the than one third of the members of the House of Commons or legislative House of Commons or legislative assembly, as the case may be.assembly, as the case may be.

Democratic Rights Cont’edDemocratic Rights Cont’ed

Translation:Translation:

4(1). The government has a limited term of 5 years. 4(1). The government has a limited term of 5 years. This means that 5 years after that government gets in, This means that 5 years after that government gets in, they have to call an election.they have to call an election.

4(2). In drastic times, the government may run 4(2). In drastic times, the government may run longer. An example of this would be during war longer. An example of this would be during war time. It is not a good idea to hold an election in the time. It is not a good idea to hold an election in the middle of a world war.middle of a world war.

Democratic Rights Cont’edDemocratic Rights Cont’ed

5.5. There shall be a sitting of Parliament and There shall be a sitting of Parliament and each legislature at least once every twelve each legislature at least once every twelve monthsmonths

Translation: The government must sit in the Translation: The government must sit in the House of Commons at least once a year.House of Commons at least once a year.

Mobility RightsMobility Rights

6(1). Every citizen of Canada has the right to 6(1). Every citizen of Canada has the right to enter, remain in and leave Canada.enter, remain in and leave Canada.

6(2). Every citizen of Canada and every persons 6(2). Every citizen of Canada and every persons who has the status of a permanent residence of who has the status of a permanent residence of Canada has the right:Canada has the right:

a. to move and take up residence in any a. to move and take up residence in any province; andprovince; and

b. to pursue the gaining of a livelihood in b. to pursue the gaining of a livelihood in any province.any province.

Mobility Rights Cont’edMobility Rights Cont’ed

(3) The rights specified in subsection (2) are (3) The rights specified in subsection (2) are subject to:subject to:

a. any laws or practices of general application in a. any laws or practices of general application in force in a province other than those that force in a province other than those that discriminate among persons primarily on the discriminate among persons primarily on the basis of province of present or previous basis of province of present or previous residence; andresidence; andb. any laws providing for reasonable residency b. any laws providing for reasonable residency requirements as a qualification for the receipt of requirements as a qualification for the receipt of publicly provided social services.publicly provided social services.

Mobility Rights Cont’edMobility Rights Cont’ed

(4). Subsections (2) and (3) do not preclude any (4). Subsections (2) and (3) do not preclude any law, program, or activity that has as its object law, program, or activity that has as its object the amelioration in a province of conditions of the amelioration in a province of conditions of individuals in that province who are socially or individuals in that province who are socially or

economically disadvantaged economically disadvantaged if if the rate of employment in that the rate of employment in that

province is below the rate of province is below the rate of employment in Canada.employment in Canada.

Mobility Right’s Cont’edMobility Right’s Cont’ed

Translation of section 6:Translation of section 6:-every Canadian citizen/permanent resident has the -every Canadian citizen/permanent resident has the right to move inside of Canada to other provinces and right to move inside of Canada to other provinces and may work theremay work there-there are 3 limitations on this right that are related to -there are 3 limitations on this right that are related to the idea of provincial programs (eg. you have to live the idea of provincial programs (eg. you have to live in a province for so long before accepting social in a province for so long before accepting social services or the workplace can hire a specific kind of services or the workplace can hire a specific kind of person before another if they are disadvantaged in person before another if they are disadvantaged in comparison to the overall rate in Canada.)comparison to the overall rate in Canada.)

Multani v. Commission scolaireMultani v. Commission scolaire

Read the case on page 41 Read the case on page 41

AnswersAnswers

The person seeking a remedy in court must The person seeking a remedy in court must establishestablish That he or she sincerely believes in the practice or That he or she sincerely believes in the practice or

belief that has a connection with religionbelief that has a connection with religion That his or her ability with the practice or religious That his or her ability with the practice or religious

belief is being interfered with, and the interference belief is being interfered with, and the interference is not trivialis not trivial

Question 2Question 2

The Québec Superior Court ruled that Multani The Québec Superior Court ruled that Multani be allowed to wear the kirpan to school as long be allowed to wear the kirpan to school as long as it was wrapped in cloth and a wooden as it was wrapped in cloth and a wooden sheath and concealed under his clothes. School sheath and concealed under his clothes. School offi cials would be allowed to conduct offi cials would be allowed to conduct reasonable inspections to ensure that reasonable inspections to ensure that conditions were being followed. If conditions conditions were being followed. If conditions were not followed, Multani would lose the were not followed, Multani would lose the right to wear the kirpan.right to wear the kirpan.

Question 3Question 3

The Québec Court of Appeal ruled against The Québec Court of Appeal ruled against Multani, holding that while his right to Multani, holding that while his right to freedom of religion was being infringed, it was freedom of religion was being infringed, it was not possible to accommodate Mr. Multani not possible to accommodate Mr. Multani without compromising the school’s security without compromising the school’s security rules. They upheld the ban on kirpans.rules. They upheld the ban on kirpans.

Question 4Question 4

The Supreme Court commented in its decision The Supreme Court commented in its decision that accommodating Multani and allowing him that accommodating Multani and allowing him to wear his kirpan under certain conditions to wear his kirpan under certain conditions demonstrates the importance that our society demonstrates the importance that our society places on protecting freedom of religion and places on protecting freedom of religion and showing respect to minority cultures. Students showing respect to minority cultures. Students will discuss the value of religious freedom and will discuss the value of religious freedom and how it is weighed against safety concerns. how it is weighed against safety concerns.

Question 4- Con’tQuestion 4- Con’t

Some students may argue that religious Some students may argue that religious freedom is paramount in showing respect and freedom is paramount in showing respect and tolerance for all cultures. Others may argue tolerance for all cultures. Others may argue hat safety should be the utmost concern in a hat safety should be the utmost concern in a school environment.school environment.