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43 views14 pages

Al4 04

Uploaded by

lostbilla66
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Administrative Law: Principles and Advocacy, 4th Edition

CHAPTER 4
The Charter and Its Relationship to
Administrative Law

Emond
Copyright Montgomery
© 2020 Publications
Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 2

The Canadian Charter of Rights


and Freedoms
• The Canadian Charter of Rights and Freedoms is
the part of the Constitution that guarantees basic
rights and freedoms and can prevent abuse and
unfairness in administrative actions and
delegated law-making

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


2
Administrative Law: Principles and Advocacy, 4th Edition 3

The Canadian Charter of Rights


and Freedoms (cont’d)
The Charter can impose fairness requirements on
agencies in two ways:

• Courts can strike down statutory provisions that


weaken procedural fairness in a way that violates
Charter rights
• Courts can read into a statute or common law a
requirement to follow procedural fairness

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


3
Administrative Law: Principles and Advocacy, 4th Edition 4

The Canadian Charter of Rights


and Freedoms (cont’d)
Who Is Bound by the Charter?

• Section 32 of the Charter states that it applies to


Parliament and government of Canada as well as
legislature and government of each province
• Also applies to ministries and departments of
government as well as ABCs carrying out
delegated functions

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


4
Administrative Law: Principles and Advocacy, 4th Edition 5

The Canadian Charter of Rights


and Freedoms (cont’d)
Who Is Bound by the Charter?

• Charter does not regulate private activities by


private persons (individuals and corporations)
• Courts cannot use Charter to invalidate common
law rules, but may modify common law rules to
comply with Charter principles or Charter
values

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


5
Administrative Law: Principles and Advocacy, 4th Edition 6

The Canadian Charter of Rights


and Freedoms (cont’d)
Rights & Freedoms Guaranteed by the Charter

• Rights and freedoms including political rights,


mobility rights, legal rights, language rights, and
minority educational rights
• In relation to administrative law, important rights &
freedoms are of religion, expression, peaceful
assembly, and association found in Section 2

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


6
Administrative Law: Principles and Advocacy, 4th Edition 7

The Canadian Charter of Rights


and Freedoms (cont’d)
In relation to administrative law, rights & freedoms
in the Charter that have greatest impact on
administrative law are:

• Fundamental freedoms in section 2 and equality


rights in section 15
• 1st class—Rights in sections 9, 11, and 13

• 2nd class—Rights in sections 7, 8, and 14


Copyright © 2020 Emond Montgomery Publications. All rights reserved.
7
Administrative Law: Principles and Advocacy, 4th Edition 8

The Canadian Charter of Rights


and Freedoms (cont’d)
• Section 2—Freedom of expression, religion,
peaceful assembly, association
• Section 7—Right to life, liberty, security of person
(fundamental justice)
• Section 8—Right against unreasonable search
and seizure
• Section 11—Procedural safeguards that apply in
the context of penal matters
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
8
Administrative Law: Principles and Advocacy, 4th Edition 9

The Canadian Charter of Rights


and Freedoms (cont’d)
• Section 12—Right against cruel and unusual
punishment
• Section 13—Right against self-incrimination

• Section 14—Right to an interpreter where party


does not speak language used or is deaf
• Section 15—Right against discrimination; applies
to administrative actions

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


9
Administrative Law: Principles and Advocacy, 4th Edition 10

Limits to Charter Rights


Limits on Charter rights & freedoms set out in
sections 1 and 33

• Section 1—Charter rights & freedoms guaranteed


“subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free
and democratic society”
• Justified = law/action must meet Oakes test

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


10
Administrative Law: Principles and Advocacy, 4th Edition 11

Limits to Charter Rights (cont’d)

• Section 33—The “Notwithstanding” Clause

• Parliament & provincial legislatures may override


fundamental freedoms and procedural fairness
(ss 2 and 7–15)
• To invoke, statute must be amended to state
expressly that it continues to operate
“notwithstanding” a provision of the Charter

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


11
Administrative Law: Principles and Advocacy, 4th Edition 12

What Remedies Are Available for


a Charter Violation?
Two sources of remedies for violations of rights &
freedoms guaranteed by the Charter
Section 24:
• 24(1) allows individuals to challenge administrative
actions that allegedly violate a Charter right
• 24(2) allows a court to exclude evidence obtained through
the breach of a Charter right

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


12
Administrative Law: Principles and Advocacy, 4th Edition 13

What Remedies Are Available for


a Charter Violation? (cont’d)
Section 24 (cont’d)
• Only a court of competent jurisdiction may grant
remedies; tribunals may be courts of competent
jurisdiction (2010, R v Conway)
• Court may grant any remedy considered
“appropriate and just in the circumstances,”
including damages (Vancouver (City) v Ward)

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


13
Administrative Law: Principles and Advocacy, 4th Edition 14

What Remedies Are Available for


a Charter Violation? (cont’d)
In contrast to section 24 of the Charter, Section
52(1) of the Constitution Act, 1982 provides:

• Remedy is to for courts or tribunals to declare


unconstitutional law to be void (i.e., “of no force
or effect”)

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


14

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