The Jurisprudence of Limitation Clauses with Particular Reference to Section 1 of the Canadian Charter of Rights and Freedoms

A Zimbabwe law Review article on the Jurisprudence of Limitation Clauses with emphasis on Canada's Bill of Rights.Section 1 of the Canadian Charter of Rights and Freedoms which is part of the [Canadian] Constitution Act, 1982 is a general limitations clause applicable to all the rights and freedoms enshrined in the Charter. Under this Section, the Parliament or Legislature can enact any law which has the effect of limiting any of the guaranteed rights or freedoms, provided that the law is “reasonable and can be demonstrably justified in a free and democratic society

Understanding the Canadian Charter of Rights and Freedoms from a Student’s Perspective: The Role of Social Media on Charter Awareness

Awareness of the Canadian Charter of Rights and Freedoms, or constitutional literacy in Canada, has gained very little attention since its establishment in 1982, particularly with university-aged Canadians. Because of the important role that the Charter plays in individuals’ lives, it is crucial every Canadian understands their rights and freedoms enshrined in law, as well as the limitations of those rights and freedoms. This study attempted to gauge constitutional literacy and social media use among Mount Royal University students, specifically on ss. 1, 2, and 7 of the Charter because of the overarching relevance and applicability of these sections to all Canadians. Social media was queried to ask students if it negatively influences students’ knowledge of their Charter rights, freedoms, and limitations. The study was exploratory and incorporated a mixed methods approach to understanding the data. The conclusions from a literature review were combined with the survey data. Literature demonstrates that the public is disproportionally unaware of their rights and freedoms, while the survey results revealed that university students have either an above-average knowledge of the Charter or a below-average knowledge of the Charter. Lastly, there was no correlation between social media use and respondents’ Charter knowledge

The notwithstanding taboo

The existence of the notwithstanding clause in s.33 of the Canadian Charter of Rights and Freedoms allows the federal and provincial governments to overrule the fundamental freedoms and legal and equality rights of Canadian citizens. Built into the override is a sunset clause, requiring governments to renew any legislation using s.33 every five years. The government is also required to state explicitly which Charter rights are being overridden, though in the limited extent to which the override has been used, the invocation of s.33 has always been vague and proclaims to operate notwithstanding all of the relevant sections of the Charter to which the override applies, sections 2 (fundamental freedoms) and 7 to 15 (legal and equality rights). (author's abstract

Homosexualité et droits à l'égalité dans les Chartes canadienne et québécoise

To what extent may a person be discriminated against within the purview of a federal or Quebec law because of his or her homosexuality ? The author attempts to answer this question in the light of the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. Those two documents make up two distinct sources against discrimination. The question as to whether section 15 of the Canadian Charter prohibits distinctions based upon homosexuality is examined in the first part of the article. The second part focuses on the nature and scope of the right of the homosexual person to complete equality under the Quebec Charter

Are All Charter Rights and Freedoms Really Non-Absolute?

This article challenges the conventional legal wisdom that no right or freedom in the Canadian Charter of Rights and Freedoms is absolute. Section 1 of the Charter is the most commonly cited source of this wisdom, but this provision merely sets out the standard that the state must meet to justify a limit on a Charter right or freedom. Section 1 does not provide advance confirmation that limits satisfying this standard exist for all Charter rights and freedoms. This interpretation, if correct, does not automatically render any of the rights or freedoms in the Charter absolute. Indeed, the standard in section 1 may ultimately capture all of these rights and freedoms. Nonetheless, this article proposes two candidates for absolute status: (a) freedoms that concern the internal forum of the person (e.g., freedom of thought) and (b) the right not to be subjected to any cruel and unusual treatment or punishment

Damages as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms

Section 24(1) of the Canadian Charter of Rights and Freedoms confers on the courts the power to award to anyone whose rights or freedoms under the Charter have been infringed such remedy as the court considers appropriate and just in the circumstances . This article discusses the issues with which the courts will have to deal if they are asked to award damages for infringement of constitutional rights. It considers, inter alias the purposes which the award of damages may serve; the elements of a constitutional damage claim; the defendants against whom such a claim may be made; and the appropriate measure of damages. In exercising this jurisdiction Canadian courts will no doubt find it useful to refer to the common law of damages and to the experience in the United States in the awarding of damages in constitutional cases. However the author concludes that the courts should not be constrained by common law principles and that the Charter confers on them a much broader jurisdiction than that of the United States courts. Canadian courts should therefore fashion a remedy in damages which will effectively redress contraventions of the rights and freedoms guaranteed by the Charter

Damages as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms

Section 24(1) of the Canadian Charter of Rights and Freedoms confers on the courts the power to award to anyone whose rights or freedoms under the Charter have been infringed such remedy as the court considers appropriate and just in the circumstances . This article discusses the issues with which the courts will have to deal if they are asked to award damages for infringement of constitutional rights. It considers, inter alias the purposes which the award of damages may serve; the elements of a constitutional damage claim; the defendants against whom such a claim may be made; and the appropriate measure of damages. In exercising this jurisdiction Canadian courts will no doubt find it useful to refer to the common law of damages and to the experience in the United States in the awarding of damages in constitutional cases. However the author concludes that the courts should not be constrained by common law principles and that the Charter confers on them a much broader jurisdiction than that of the United States courts. Canadian courts should therefore fashion a remedy in damages which will effectively redress contraventions of the rights and freedoms guaranteed by the Charter