Juno News - May 10, 2020


The Charter of Rights and Freedoms — what rights do you have？


Episode Stats

Length

20 minutes

Words per Minute

191.21155

Word Count

3,954

Sentence Count

182

Hate Speech Sentences

2


Summary


Transcript

00:00:00.000 So, in my last video I spoke about the concept of rights. I wanted to keep it more theoretical,
00:00:13.680 and have that discussion really be about the idea, what is right, where do these ideas come from.
00:00:18.880 Now, in the feedback, some of you asked me to talk about the actual constitution of Canada
00:00:23.280 and where our rights here come from, as opposed to more of the philosophical or theoretical idea,
00:00:28.480 which I still want to explore a bit more, but in this video I think we'll tackle some of the more
00:00:32.720 practical things. So, let's start right at the beginning, we're going to jump right in. So,
00:00:37.280 first of all, we have to address what is a constitution, where do our rights come from,
00:00:42.640 you guys have heard words like the charter, I spoke last time about the charter being repatriated,
00:00:47.600 so what does that kind of thing mean, and we'll explore all these ideas, but first, the definitions.
00:00:53.040 So, the definition of a constitution. A lot of people tend to think, I think, about the
00:00:58.320 American constitution. They might understand the charter, or know what the charter is,
00:01:02.800 but not necessarily understand it as sort of a constitution. It's really a part of Canada's
00:01:08.000 constitutional laws, but the constitution itself is an important idea that we need to understand.
00:01:13.840 And so, a constitution, in its most basic sense, is a set of principles or laws. These are sort of the
00:01:20.160 underlying foundational laws that a nation or state would have, and this basically talks about how the
00:01:26.000 state is going to be governed. It can have about the rights or the requirements. It can talk about
00:01:31.120 when the government has to meet. So, for example, how often the parliament or the legislature or the
00:01:36.400 congress, what needs to sit. So, these are the basic laws that a country would have. Now,
00:01:42.000 interestingly enough, you would say, okay, well, you know, I guess every country has a constitution.
00:01:46.560 If you look at, for example, the United Kingdom, so you can see right here, the United Kingdom,
00:01:50.720 because of its age and historical precedents, does not actually have a single document like
00:01:56.160 the Americans. So, the Americans in 1776 declare independence, there's the Declaration of Independence,
00:02:02.080 and then later on, there's the Constitution of the United States and all the amendments,
00:02:05.040 and you guys, I'm sure, are familiar with the First and Second Amendment, at the very least,
00:02:08.960 if not maybe some of the other ones. But the constitution can be a single written document,
00:02:15.360 or it can be a group of documents. And this is actually what Canada had. So,
00:02:20.320 if we go to these guys, these are the founding fathers of the country. At the time when Canada
00:02:26.240 was created as a singular entity made up of the original four provinces, there was an act in the
00:02:32.640 British Parliament known as the British North America Act, the BNA Act. This was in 1867, and
00:02:40.400 this is commonly referred to today as the Constitution Act 1867, but this is really the
00:02:46.480 founding document that says, okay, you guys are going to be a confederation,
00:02:49.840 this is going to be a new commonwealth country that is going to be called Canada. It's made up of
00:02:54.560 these four provinces, the four original provinces. And so, this is sort of the first attempt at a
00:03:01.680 constitution. So, at this point in 1867, we're still not like the Americans with a singular document
00:03:08.800 constitution, because we have what's called British common law, and that's again similar to what's going
00:03:13.200 on actually in the UK, where sets of laws, sets of legal precedent all combine to sort of make up our
00:03:21.120 constitution. Now, this continues all the way until 1931, in which the Statute of Westminster, which is
00:03:29.680 another law that was passed in the UK, that basically said that certain parts of the commonwealth would be
00:03:36.960 given self-rule, they would be given the ability to self-govern, and so this act sort of made up
00:03:45.680 an additional part of Canada's rights. Now, interestingly enough, because we did not have
00:03:51.680 our own constitution, and because we were so tied into Britain, as we still are in many ways today,
00:03:56.720 the Queen is the official head of state, the Governor General as her representative is the official
00:04:01.120 head of state, on paper, as much as the Prime Minister might actually be the de facto head of
00:04:06.400 state, which is the, in reality, head of state. But the way that our constitution was set up, and the
00:04:13.040 way that our laws were set up, the Supreme Court of Canada actually was not even the highest court in the
00:04:20.000 country. The highest court in the country was actually something called the Judicial Committee
00:04:25.760 of the Privy Council, and that's in the UK. So you could appeal your, you could appeal everything
00:04:30.800 all the way to the Supreme Court, but then you didn't like the Supreme Court decision,
00:04:34.000 so you could appeal to what's called the JCPC, the Judicial Committee of the Privy Council,
00:04:39.920 and so that's where the final, final decisions would be made. Now, why is this relevant to the
00:04:45.600 Constitution, or why is this relevant to everything before we even get into the Charter? So first of all,
00:04:50.800 again, the Constitution sets up basic laws. It sets up your rights and freedoms. So prior to 1982,
00:04:57.040 you have your rights contained in a number of different places. You would have the Canadian
00:05:02.720 Bill of Rights 1960, and the Canadian Human Rights Act 1977. But because of the fact that none of these
00:05:10.400 is actually in a constitutional document, it creates a bit of difficulty for the judiciary,
00:05:16.800 so for the courts to try and figure out which one of the rights, how the government is going to apply,
00:05:22.800 or what happens if your rights are violated, because some of the governance documents and some
00:05:27.840 of the rights documents are all in different places. And so the court really has to sort of
00:05:32.080 figure it out. And again, in the UK, to use the UK example, because they don't have a written
00:05:36.320 constitution, that on one hand might be difficult, but they have centuries of British common law and
00:05:42.000 precedent where court cases have been decided and how government is going to respect or uphold human
00:05:48.640 rights. So they have a lot of that history. And that's why for them, it's a bit easier to figure
00:05:57.440 things out. So back to Confederation and back to the Founding Fathers. So again, we have a number of
00:06:04.800 different documents. Then comes Pierre Elliott Trudeau, so the elder Trudeau, and he decides
00:06:11.360 that Canada is going to have to have its own constitution. So we're going to have to what's
00:06:16.800 called repatriate our constitution. Again, unlike the Americans who started off as British colony,
00:06:22.400 much as we did, they decided to break away, declare independence. So they have the Declaration of
00:06:26.960 Independence, and then they have the constitution. With us, because we stayed part of the Commonwealth,
00:06:32.000 if we stayed part of the British Empire, we never had that. So we had to repatriate. So
00:06:37.120 patrioting, repatriating, bring our constitution back home, as it's commonly referred to. So we had
00:06:42.880 to bring that back home. And that was done in 82. So that is what is called the Constitution Act 82.
00:06:50.800 That's where the charter was adopted. So here you can see, this is the Constitution Act 1982.
00:06:55.840 And this is also the charter. But it's got many, many sections. And there's a lot of things about
00:07:02.880 how you apply it and where the rights and responsibilities come from. What is the role?
00:07:09.760 You can see I was looking up some principles here. So this is the Constitution Act 1982. And again,
00:07:15.200 this is when Canada officially gets its own constitution. So this is now the highest document,
00:07:22.240 the highest legal document in the country. And so we can use this to understand how we're going to
00:07:27.120 apply other rights, how we're going to understand different rights, and how we're going to
00:07:32.080 balance rights between individuals and operations of the state. So this is all the document. And I do
00:07:37.040 want to go through some of the charter, just to talk about some of the issues. Because again,
00:07:41.520 because of the coronavirus crisis, many people have questions. What right does the government have to
00:07:46.480 make these decisions, these sometimes arbitrary seeming decisions? What right does the government
00:07:50.400 have? And what are my rights? And how are those two things balanced? But just before there,
00:07:54.960 you can see here's a nice video of this is 1982, when the Queen came to actually sign the charter. So
00:08:02.000 she signed it, which again, begs all kinds of interesting questions about the sort of independence
00:08:07.520 of Canada. Again, we're still very tied to the British monarchy. And I think, you know, there's some
00:08:11.520 people who have some issues with that. Some people who have don't, some people do not have issues with
00:08:15.520 that. For me, it really all depends on, I guess, the the de facto state of affairs,
00:08:20.400 which means the in reality state of affairs. I think there's a lot to be said for tradition. And
00:08:24.640 there's a lot to be said for institutions, especially very old institutions. So shouldn't
00:08:29.040 necessarily throw them out immediately. And really, you know, it all depends on how things are in
00:08:34.960 practice, right? In Canada, we have a lot of ties to the British monarchy, but we're not necessarily,
00:08:41.280 on an everyday day to day basis, we're not really run by the British monarchy or by the
00:08:45.440 British parliament. So, you know, again, there's a lot to parse out there. I think maybe that's the
00:08:49.440 topic for another video. Regardless, I just wanted to pull up this, this cool video and show you a bit
00:08:54.880 of that history, the Canadian history. So here back to the Constitution Act 1982. So this is the charter.
00:09:00.560 And this part of the video, if you've been watching until now, this part of the video,
00:09:03.120 we're actually going to go through some of the charter and try and talk about what that means.
00:09:06.960 So again, here is the Constitution Act of 1982. This is now the highest law of the land.
00:09:12.480 So right off the bat, whereas Canada is founded upon principles that recognize the supremacy of
00:09:16.960 God and the rule of law. In my last video, I spoke about sort of the natural rights,
00:09:21.600 the God-given rights, the inalienable rights, the fact, the rights that you have or that is believed
00:09:26.560 you have simply because you are a person, and then the rights that government has to give to you.
00:09:30.400 These are the positive, again, and negative rights. The negative rights, leave me alone,
00:09:34.080 you don't need to do anything. So freedom of speech, just let me say what I want. Positive
00:09:38.080 rights, you have to give me something. I have a right to education, a right to health,
00:09:40.720 a right to housing, all these types of things. So again, it's important, I think,
00:09:45.520 that the supremacy of God is in there because it speaks to, I guess, the inalienable and natural
00:09:50.400 rights of the person. So we have here that the Canadian chart of rights guarantees rights and
00:09:56.160 freedoms set on a subject only to reasonable limits prescribed by law as can be demonstrably
00:10:00.960 justified in a free and democratic society. So here we go. This is sort of right off the bat,
00:10:06.080 I guess, an interesting one. And this talks about the limits. Now, obviously, you can think there
00:10:11.760 might be limits or when there will be a limit on somebody's rights. That's if they break a law or
00:10:16.160 if they're doing something they're not supposed to be doing, then obviously their rights would have to
00:10:19.200 be violated because that prevents them from violating other people's rights. So again, you commit a crime,
00:10:24.480 you're arrested, suddenly you don't have the right to go anywhere, you don't have the right to do a
00:10:29.040 number of the things you used to do, you lost your free speech, you probably should still have the
00:10:33.200 right to remain free of unlawful search and seizure, which is in here. But you've lost a number of
00:10:38.720 rights and that is a justifiable, that is very justifiable because that's what it takes to keep
00:10:43.120 an orderly and lawful society. So right off the bat here, this is sort of one of the founding
00:10:48.240 principles. Then we get to the actual freedoms. So this is the freedom of conscience and religion,
00:10:52.720 freedom of thought, belief, opinion, expression, freedom of the press and of other media and
00:10:56.640 communication, freedom of peaceful assembly, freedom of association. Implied in this one,
00:11:00.640 interestingly enough, is freedom to not associate. So I can choose to associate, but I can also choose
00:11:05.040 not to associate. Some very interesting legal cases there that maybe I'll talk about in another video.
00:11:09.920 So these are the sort of the fundamental freedoms. Then here's the democratic rights,
00:11:13.040 talking about the right to vote, talking about in time of war or what must be done in the House of
00:11:18.720 Commons. This one is especially interesting because the coronavirus crisis is put to the test,
00:11:25.280 some of these sort of democratic principles. There was quite an issue with the House meeting,
00:11:30.720 or not meeting rather, early on until we got some of the virtual parliamentary
00:11:35.440 sittings able to be done. And so that again is very interesting since it specifically outlines what
00:11:40.800 happens to do and what should we do in a wartime. Whereas this one, again, is a crisis, a pandemic,
00:11:48.320 probably not thought of when the authors wrote this, but again, some parallels there. Mobility rights,
00:11:54.480 talking about moving and remaining in Canada, moving to different provinces. These are the
00:11:58.800 legal rights. You have the right to life, liberty, security of the person, the right to be secure
00:12:04.720 against unreasonable search and seizure. So I spoke about that just before the right to not be
00:12:09.200 arbitrarily detained or imprisoned. Again, some very important, very fundamental rights. And in the
00:12:15.040 legal rights, as opposed to sort of the fundamental freedoms. So right now, the government is not,
00:12:21.520 I don't think anyone is arguing the government is violating your freedom of conscience, freedom of
00:12:25.440 religion. I don't think they're talking about some of these other rights, freedom of thought, belief,
00:12:29.440 opinion, peaceful assembly, maybe because you can't really go anywhere. Freedom of association,
00:12:36.160 again, you can't really go anywhere. So that's somewhat connected. But the real one is the legal
00:12:41.360 rights, the right to not be arbitrarily detained, the right to not be in prison. That's again,
00:12:47.280 you know, sort of boarding with the stay home orders, with the property rights, you can go to
00:12:52.640 your cottage, you cannot go to your cottage, you know, these, these type of rights. And I think this
00:12:56.560 is where people are finding that question, where have our rights gone? What are happening to our
00:13:02.640 rights? And how do we sort of make sense of all these things? Because rights are, I guess, the most
00:13:10.160 basic fundamental block of building a society. The fact that everyone is equal and has rights is
00:13:16.720 something that's not common throughout history, because throughout history, you would have had
00:13:20.560 maybe rulers, aristocrats, the wealthy landowners, you know, different categories of people, maybe
00:13:25.600 different races, different categories of people, they had different rights than perhaps others,
00:13:30.640 you know, so you could have a slave or indentured servant or a bondsman, these people would have less
00:13:35.120 rights, maybe no rights than, you know, than different categories of people. So, you know,
00:13:41.920 the everyone here, everyone, everyone, everyone, that's really critical. And again, that's part of
00:13:46.800 the discussion right now, if well, if everyone, then how are you? How are you telling me this? How are you
00:13:50.480 telling me to stay home? How are you telling me all these things? Because everyone, it's not just,
00:13:53.600 you know, some people. So this is all part of that discussion ongoing right now, that I think is
00:13:58.720 important for us to look at. The most important part, though, that I think most people do not know or
00:14:03.680 understand, and I'm gonna have to control F to find, is the right here. So this is the, sorry,
00:14:10.800 this is male and female, that's the not the correct, notwithstanding, this is section 33. Okay, section 33.
00:14:18.160 Now, this is the, I think, most misunderstood part of the charter of the Canadian constitution,
00:14:24.560 and I want to talk about it because it doesn't really exist in the same way in a lot of other
00:14:28.400 countries. And this is what is called the notwithstanding clause. So notwithstanding clause here,
00:14:33.120 I'll read it out first and then we'll talk about it. Parliament or legislature of a province may
00:14:37.280 expressly declare an act of parliament or of the legislature, as the case may be,
00:14:41.600 that any act or provision thereof shall operate notwithstanding a provision,
00:14:46.400 excuse me, not including a provision, including in section two or sections seven to 15. So again,
00:14:51.280 section two, this is up here, this is your fundamental freedoms, or seven to 15, the legal rights,
00:14:59.040 all the way down here to 15 and quality rights. Okay, so what does that mean back to section 33,
00:15:04.240 back to the notwithstanding clause? So, okay, that means that parliament, so the federal parliament,
00:15:09.520 or a provincial legislature can say, can especially declare that an act of parliament or the legislature
00:15:18.080 is going to be in effect regardless of what it says in section two or sections seven through 15.
00:15:24.880 So again, so theoretically, a provincial government could pass a law saying that, you know, you do not
00:15:32.320 have freedom of religion, right, there's only going to be one official religion, or you do not have
00:15:37.120 freedom of association, you do not have the right going forward to be safe from unlawful search and
00:15:43.760 seizure. So theoretically, a province could pass that. And therefore, your rights as guaranteed by
00:15:50.400 the charter are now not guaranteed because section 33, the notwithstanding clause, notwithstanding
00:15:55.920 clause has sort of unguaranteed them in a particular sense. Again, this brings up a lot of discussion
00:16:01.600 of when is it valid? When is it a right that is permanent, that it can never be violated? Are there
00:16:06.720 times when it is appropriate to be violated? This section, it is important to note, has never been
00:16:12.320 used on the federal level. So the house of commons has never actually had to use the notwithstanding
00:16:18.480 clause. But provinces have used the notwithstanding clause. And the most famous example is Quebec with
00:16:24.720 some of the language laws. I'll pull up a link here, I'll try and pull it up in a second. But
00:16:30.080 some of the language laws in Quebec, then those ones you get around the the charter, because there's a
00:16:38.320 notwithstanding, notwithstanding clause that's being invoked. And therefore, they can just get away
00:16:45.040 and say, okay, well, you know, we understand that, we understand that, you know, it says these rights
00:16:50.560 here. And, you know, we believe in these lights. However, the, you know, notwithstanding because
00:16:57.600 of special issues in Quebec, special dynamics in Quebec. So therefore, we believe that this
00:17:02.240 particular right is, it's more important to enforce another right, which is language rights and
00:17:07.520 French language rights, as opposed to this right of people. So it's important to look at these rights
00:17:13.520 and the notwithstanding clause in one context that it can be used to differentiate between rights,
00:17:18.400 or perhaps reorder the rights in different tiers. So you might say, okay, well, you have two competing
00:17:23.520 rights, but we're going to now reorder them. So it doesn't necessarily have to be, we don't think you
00:17:28.640 have freedom of religion, we don't think you have freedom of conscience. It doesn't necessarily have
00:17:32.560 to be that it could be simply a reordering, a reordering of, of different rights, different rights that
00:17:40.160 are competing. And so that is something that I think is something we need to keep in mind.
00:17:44.880 But regardless, the fact that there is a Section 33 that is, is different than I think a lot of
00:17:51.120 other countries where they have a straight section that talks about how we're going to deal with this
00:17:57.680 is very important on one hand. But again, this all ties into the fact that you have to have,
00:18:04.640 and I mentioned in my previous video, you have to have a society that is willing to uphold your rights.
00:18:09.680 And in our society, in our, you know, in the times that we're living in, it's the government
00:18:14.800 that is upholding your rights. So in a certain sense, the government is giving your rights,
00:18:20.400 and I'm going to, you know, using quote marks, the government is giving you your rights,
00:18:23.680 because ultimately, it doesn't matter if the rights are inalienable, and they're God given,
00:18:27.840 because the government society at large is upholding those rights for you. But then again,
00:18:34.000 here, we're talking about the way how to deal with those rights. And so the charter as a document,
00:18:39.920 again, is, is super important, because not only did it finally bring together as in 1982,
00:18:46.400 did it finally bring together the laws of the land in Canada under one document, which makes it much
00:18:52.800 easier, and sort of more important, it codifies them as the basic law of this country. But it's
00:18:58.880 important, because right now, a lot of the discussion should revolve around the constitution,
00:19:05.360 around the charter, and around our rights, because we can't talk about rights, unless we all understand
00:19:11.520 rights in the same way. And that's what this document is trying to do. Now, I do want to set
00:19:15.760 up for the next, for the next video. And I want to talk about, you may have heard this concept of
00:19:21.600 the constitution or the charter as a living, breathing document. You may have heard from the
00:19:27.680 US, people talking about the constitution literally, or reading into it different things.
00:19:32.720 So I want to talk about that. And that's a bit of a complex issue. And that's how we understand the
00:19:36.800 charter going forward. How do you read this document? I mean, this was written in 1982,
00:19:41.280 so much more recent. But if you're talking about other documents, how do you read them if they're
00:19:46.960 two, three, 400 years old, or in the case of British common law, how do you read that if this is like
00:19:51.040 800 years old, right? So something about to talk about for another video. But other than that,
00:19:55.920 I really hope that everyone found this video somewhat useful. And if you have any questions
00:20:00.000 about the constitution, I'd love to be able to try and explore that together with you. And, you know,
00:20:04.800 keep posted, subscribe to our YouTube channel here at True North. I know a lot of the True North
00:20:10.000 contributors, my colleagues are talking about a lot of very, very important things. There's a lot of
00:20:14.160 discussions going on right now. So many of them, many of them have especially been speaking about gun rights,
00:20:18.960 which is super, super important. And I might even talk about that, depending on where we are,
00:20:23.200 sort of in a week or so. But definitely subscribe, stay tuned, like our social media pages, and follow
00:20:30.000 us so you can stay up to date on the latest information. Other than that, have a great day,
00:20:34.960 wash your hands, stay safe. And I'm Sam Ashkenazi for True North. Thanks so much and hope you enjoyed.