Forget the preamble; the Charter is even more explicit on this particular point:
(bolding mine)
I’m not sure how that bolded section has been used in practice, but in theory judges have a lot of leeway to allow illegally obtained evidence.
Thank-you very much for the link (and for the incidental assistance in learning how to post a link more innocuously).
I am making the following assumptions: 1) I’m reading it correctly 2) the information is accurate 3) There isn’t something lawyers would get that I’m not getting <— not only utterly possible but almost certain.
Reading this it seems to me that the Charter guarantees me the following rights:
- the right to vote for representatives who must meet at least once per year
- the right to move around in and/or leave Canada at will
- The right to speak either official language and the right to interact with the government in either
- the right to educate my kids in either language.
These are inviolable by my reading.
The rights I’m not guaranteed:
1)Freedom of - conscience and religion; thought, belief, opinion and expression (including media); peaceful assembly; association.
2)the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
3)the right to be secure against unreasonable search or seizure.
4)the right not to be arbitrarily detained or imprisoned
5)the right to not to be subject to any cruel or unusual punishment
6)the right to be equal before and under the law
7)the right to equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability
These are open to the Notwithstanding clause.
So if I understand this correctly any majority government - federal or provincial - could pass a law (admittedly at their own dire political peril) that would strip me of pretty much every one of my fundamental rights for a period of five years. And it can be extended indefinitely at five year intervals.
I grant that it would take at least a couple of months to pass the legislation and elections within four years of the last one (except in case of war which extends it to five years I think).
But really? Holy fuck!!!
Please, someone tell me that I’m Martian-orbit-left-field in my understanding of the POSSIBLE ramifications of this clause!
I even like Trudeau and I pray for both his resurrection and return to Canadian politics
It’s always five years. Traditionally an election has been called about every four years because the governing party doesn’t want to risk that a major crisis or scandal could hit them in that last year and then they’d have to go to an election with the scandal fresh in the electorate’s minds.
You have it right, but it would take 50%+1 of all MPPs/MLAs/MPs in the legislature to want to commit political suicide to do it.
I checked and you’re right - no big surprise to me. I thought that I had been taught it was a maximum of four except in case of war. It seems I wasn’t :smack:
I realize that it would almost certainly never happen because of the whole political suicide thing. But holy Jesus on a skateboard!
Our Charter gives our government the power to remove our every civil liberty (save for voting and changing provinces).
How many other countries, I wonder, pen a document that enshrines human rights but incudes a clause that essentially means “until we say no”?
Well, don’t forget that before the Charter, many of the rights guaranteed by the Charter were provided by the Canadian Bill of Rights, which was a federal statute. This meant that it didn’t apply to the provinces and could be amended or repealed by the government at any time.
Edit: And the Bill of Rights had its own notwithstanding clause. I didn’t know that detail before.
Well, that may be a little better than those countries that pen documents enshrining human rights, then proceed to explain how those rights can be taken away. See, for example, the 1977 Constitution of the Soviet Union:
Okay, with that aside addressed…
Zeke, you’re asking some very big questions here. Don’t get me wrong; they’re good questions (I saw the story about the Alberta-registered truck and the questionable search in my morning paper today, and had to remember back to my Criminal Procedure and Constitutional Law classes to understand it), but they’re also quite broad. Can you narrow your questions at all? They may be a little easier to answer in smaller chunks.
In the event that any serious curtailment of rights was implemented with the Notwithstanding Clause, it is likely that the political climate would also allow an outright change to the Charter that would have the same effect. In just the same way, rights could be restricted in the US by means of amending their constitution to repeal some part of the Bill of Rights.
The Notwithstanding Clause isn’t what you should worry about - what you should worry about is a change in public sentiment that would allow its utilization. Because if public sentiment would allow for the Notwithstanding Clause, it would also allow for outright flouting of the Charter, packing courts to render decisions that would gut it without it actually being changed, or some other means of ignoring the rights of a free society.
My definition of “unreasonable” is that which came along with the amendment. You know, several centuries of jurisprudence, not just someone deciding to make up a new set of rules somewhat later. :rolleyes:
I’m afraid the question there is “yes and no”.
Take the example of exclusionary rules. The US exclusionary rule is much broader than the the Canadian one. Once there is a finding of an unreasonable search, the evidence is almost always excluded. (I’m not up on the current extent of exceptions, so I’ll defer to US law-dopers on that). Now, the exclusion of evidence that is relevant and probative is a pretty severe impact on the prosecution of a criminal case, and you might expect that such a drastic rule would be expressly set out in the Constitution. But it’s not. It’s entirely an invention of the judges of the Supreme Court of the United States - originally in a case called Weeks v. United States (1914), which only applied the rule in federal proseuctions, and later extended the rule to state prosecutions in a case called Mapp v. Ohio (1961).
The Canadian rule, by contrast, is more nuanced, and is expressly set out in the Constitution, as s. 24(2) of the Charter, as quoted up-thread. When the Charter was enacted in 1982, the elected representatives grappled with this issue. They didn’t like the automatic exclusion the the US rule produces, but also wanted to provide a remedy for a person whose rights had been violated. Hence the wording in s. 24(2), which presumes that evidence gathered unconstitutionally will be excluded, unless the Crown can make the case that it should be admitted on the facts of the particular case.
Now, how the two exclusionary rules will be interpreted and applied in a particular case will depend heavily on the case-law of the respective Supreme Courts, so to that extent the answer to your questions is “yes”. But to the extent that the origin of the US exclusionary rule is a judicial decision, while the origin of the Canadian one is an explicit constitutional provision, enacted by the elected representatives, the answer is “no” - the roots of the two rules are not both derived from cases.
Whether this makes the Charter meaningless, as you suggest, is a matter for debate. Yes, individuals have the right to have their Charter rights respected by the police and the courts. But at the same time, society as a whole has a strong interest in ensuring that crimes will be prosecuted, and individual victims of crime have a strong particular interest in seeing that the person who harmed them is brought to book. It’s not possible to say that one view or the other should automatically prevail, hence the discretionary approach built into s. 24(2).
One point of correction - it’s not just the Provinces which can use the “notwithstanding” clause - it’s both Parliament and the Proivnes, within their respective jurisdictions.
In response to your question, I would respond with another question: in a democracy, who should have the final say on important issues of public policy - the elected representatives, or an unelected judiciary? That question is the reason for the notwithstanding clause. At the time of the patriation of the Constitution, many people were uneasy with the idea that the judges would have the final say. Hence the notwithstanding clause - in certain matters, the elected representatives have the power to overturn a judicial ruling on a constitutional point, but only on a temporary basis. It’s limited to five years, and sometime during that five years there will have been an election and the government that relied upon the notwithstanding clause will have to account for its actions to the people.
That approach to rights is different from that of the United States, but in my opinion, it’s certainly a defensible way to balance the competing interests and powers of the courts, the legislature, and the people themselves.
As for whether that makes the Charter simply a set of guidelines - in the 27 years that the Charter has been in force, the notwithstanding clause has only been used about a dozen times, and never by the federal Parliament. The political cost of using the clause is considerable. It means that the people themselves are part of the guardians of the Constitution and of constitutional rights. Is that such a bad thing?
One minor quibble here - it’s not a right to educate your kids in either language; it’s a right to have your kids educated at public expense in English or French, whichever is your native tongue (I’m paraphrasing), provided that language is the minority language in the province you’re living in. So if your native language is English and you’re living in Manitoba, the Charter doesn’t guarantee you the right to have your kids educated in French at public expense. (Nor does it give you a constitutional right to have your kids educated in English, either.)
Yes and no. They aren’t subject to the notwithstanding clause, but they have internal limitations built into them.
-
the duration between elections can be extended during wars and insurrections, by a two-thirds vote of the Parliament/Legislative Assembly in question;
-
your right to stand for election has been held by the courts to be subject to disqualification as part of a sentence for committing corrupt electoral practices;
-
your right to move about the country and seek work is subject to general residency rules, as well as a special rule for areas of chronic high unemployment;
-
your right to enter or leave Canada is subject to legal restrictions, such as extradition treaties which can compel you to leave, and of course jail sentences if you’ve been convicted of an offence, which prevents you from leaving until your sentence has been served;
-
your right to use the official language of your choice in dealing with the federal government will vary depending on where you are in the country and the amount of the demand for government services in that language;
-
and your right to have your children educated in the minority lanague at public expense is subject to a “where numbers warrant” requirement.
So saying that these rights are absolute or guaranteed leaves out a lot of nuance.
Well, in considering those rights that relate to the criminal process, you have to consider that criminal law is an area of exclusive federal jurisdiction. So the provinces can’t use the notwithstanding clause to negate any of the Charter rights relating to the criminal process - they can’t override the presumption of innocence, or take away your jury right or the right to counsel. Only Parliament could do that, and it would have to do so in the full light of day, in the spotlight of the national media, and subject to the criticisms of the Official Opposition. As Gorsnak points out, those are pretty substantial political forces that buttress your Charter rights. If the government were able to pass a law taking away the presumption of innocence in a criminal prosecution (to choose one of the most important Charter rights), it would mean that the media, the Opposition and the public to some extent acquiesce in that decision. And if so, we have more problems than just the use of the notwithstanding clause.
Which gets back to the point I made in an earlier post - one of the effects of the notwithstanding clause is that it means that the ultimate guarantee of the people’s rights set out in the Charter is the people themselves. So long as we have a political culture where those rights mean something to the people, and the people will exercise their political powers to protect them, the rights will be protected.
If the people give up on those rights, I’m not convinced that the courts could save us, as the Japanese-Americans found out during WWII.
And finally, since you asked for a comparison to the US - every right that is set out in the Bill of Rights could be repealed by the democratic process. They are not unalterably entrenched. Granted, it would take a constitutional amendment, as opposed to an ordinary statute, but it could be done. What prevents it from being done is ultimately the popular support of the American people for the fundamental rights set out in the Bill of Rights.
What Northern Piper says.
In general, just think of the Canadian Charter of Rights and Freedoms as something that attempts to find a reasonable balance between conflicting interests. Any interest might have to bend so as to uphold another interest.
The general intent of our less restrictive exclusionary evidence rule (as compared to that in the USA) is to encourage the police to play straight, but not to stand in the way of very serious matters if the police cross the line somewhat.
For example, in my town a psychopath was on a murder binge, having killed three people in separate indicents in the last day just for the hell of it. The police pulled all stops in trying to identify and arrest the person, including a warrentless search of a vehicle parked on private property. The murderer was identified by what was found in the truck, so the police then arrested the fellow. In the circumstances, the search was a bad search, and the arrest based on the bad search was a bad arrest, but the court still admitted the evidence that was found in the truck, leading to three life sentences. The evidence was hard evidence (one of the murder weapons). It was not created by a Charter right, nor was it found by forcing the murderer to disclose it. The only real problem with the evidence was that the police skipped a bit of paperwork in their haste to catch a homicidal maniac. On appeal, we stood on the Charter violation, but the decision was upheld, for the simple reason that a technicality should not stand in the way of catching a psychopath on a killing spree. While the court’s approach is not satisfactory to people who think in absolutes, or to people who have a bone to pick against The Man, or to jailhouse lawyers, I think it is rather comforting to know that the court does not loose sight of public safety when weighing interests.
When deciding whether or not to exclude illegally obtained evidence, the court tends to look at three sorts of factors: first, factors relevant to the effect of admission on the fairness of the trial that might lead to exclusion; second, factors relevant to the seriousness of the Charter violation that might lead to exclusion; and third, factors relevant to the effect of the exclusion on the reputaton of the administration of justice that might lead to admission. Have a look at the SCC’s decision in Collins for a non-exhaustive list of factors that courts frequently consider:
“-- what kind of evidence was obtained?
– what Charter right was infringed?
– was the Charter violation serious or was it of a merely technical nature?
– was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?
– did it occur in circumstances of urgency or necessity?
– were there other investigatory techniques available?
– would the evidence have been obtained in any event?
– is the offence serious?
– is the evidence essential to substantiate the charge?
– are other remedies available?”
Forget about the existing law for a moment, and think very carefully about when evidence should be tossed to protect individuals from persecution by the state, and when truly bad dudes should be locked away even if their rights were somewhat infringed. Where would you find the balance? If you were a Canadian judge, finding a balance would be your job. At its heart, that balance is what the Charter tries to frame, so that judges are given a framework to work with when finding a balance in any given case.
Besides, if the infringement of the criminal’s rights was so severe, he could always sue the police while sitting in prison. Just because he did not get the evidence tossed out due to the rights violaton does not mean that he could not attempt to get some other remedy appropriate to the degree of severity of the rights violation.