Legal Rights The legal rights section of the Charter guarantees the rights held by anyone investigated, detained or criminally charged, or who is faced with legal restrictions of any kind. Sections 8 through 14 of the Charter[1] protect procedural legal rights. These rights explain what state agents such as police officers may do when investigating, or prosecuting, a legal infraction. As “the treatment meted out by agents of the state to even the least deserving individual will often indicate the treatment that all citizens of the state may ultimately expect,”[2] courts will diligently protect procedural rights. These include section 8,[3] which protects against unreasonable search and seizure, section 9,[4]which protects against arbitrary detention, and section 12,[5] which protects against cruel and unusual punishment. Sections 10,[6] 11[7] and 13[8] protect rights upon and after arrest, such as the right to legal counsel and the right to trial within a reasonable time. Section 7 protectssubstantive legal rights from restriction.[9] This section ensures that our rights to “life, liberty and security of the person” are only infringed by laws that conform to the “principles of fundamental justice.” There are three established principles of fundamental justice.[10] A Law that restricts section 7 rights must not be arbitrary: it must relate to a specific problem. The law must not be overbroad: it must only restrict section 7 rights to the extent necessary. Finally, a law must not be disproportionate: the restriction to the rights must not outweigh the problem the law addresses. Legal rights ensure the state treats citizens fairly. Section 7 specifically ensures that laws do not unfairly restrict the life, liberty or security of people living in Canada. Sections 8 through 14 protect people in their interactions with the justice system and law enforcement. [1] Canadian Charter of Rights and Freedoms,Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. [2] R v Stillman, [1997] 1 SCR 607 at para 47. [3] Charter, supra note 1, s 8. [4] Ibid, s 9. [5] Ibid, s 12. [6] Ibid, s 10. [7] Ibid, s 11. [8] Ibid, s 13. [9] Ibid, s 7. [10] Carter v Canda (Attorney General), 2015 SCC 5 at para 72. Judicial Review In Canada, as well as in many other constitutional democracies, there are two types of ‘judicial review’ – judicial review on administrative acts, and judicial review on the constitutionality of legislation. Both types of ‘judicial review’ are based on the idea of the rule of law. This idea means that not only citizens, but also governments’ officials, are subject to the law. If these officials do something that the law does not allow them to do, the courts are allowed to nullify their actions. The first type of ‘judicial review’ involves the actions of the executive branch of government. In the modern state it is impossible for the legislature to address every administrative decision (such as the decision to issue or to refuse to issue a business license), therefore, many statutes endow various governmental authorities with administrative powers. If a person believes that a certain governmental authority has exercised its power in an arbitrary, discriminatory, or otherwise unreasonable way, she can file a suit in a court of law and ask for ‘judicial review’, that is, to ask that the court review the administrative decision. If the court finds in favour of the plaintiff, it can annul the administrative decision. The other type of ‘judicial review’ does not involve the actions of the executive branch, but rather the actions of the legislative branch. S. 52 of theConstitution Act, 1982 provides that “the Constitution of Canada is the supreme law of Canada”. S. 24 of the same Act guarantees the right for individuals to challenge legislation which does not conform with the Constitution thereby giving Canadian courts the power to engage in ‘judicial review’ on the constitutionality of legislation. The purpose of this type of ‘judicial review’, also referred to as “constitutional review”, is to ensure that legislation conforms to the Constitution of Canada. The Constitution regulates two different areas – the division of powers between the federal and provincial government, and the rights guaranteed to every Canadian against both levels of government. Consequently, there are two ways in which an act of a legislature or of Parliament might be unconstitutional. First, when the act is enacted by a provincial government while the relevant subject matter of the act is under Federal jurisdiction (or vice versa) (see division of powers). Second, when this act violates the Charter of Rights and Freedoms. When a court strikes down legislation on division of powers grounds, it does not mean that the content of law itself violates the constitution. Rather, it means that the institution which enacted the law (a provincial legislature or Parliament) violated the Constitution. Consequently, if there is a strong public interest in enacting this legislation, the appropriate institution can enact this act. Conversely, when a court strikes down legislation on Charter grounds, it means that the content of the law violates the Constitution, and no legislature could properly enact this law. For this reason, ‘judicial review’ on Charter issues is often criticized as illegitimate since it gives to the judiciary the power to block important legislative initiatives. The obvious response to this criticism is that when the courts nullify legislation that violates the Constitution, it enforces this document, not the judicial will. An objection to this response is that the language of theCharter is very open- textured, and refers to abstract concepts such as “freedom of expression”. People could reasonably disagree about the meaning of such concepts, and therefore courts would not really enforce “the Charter”. Rather, they impose their own subjective reading of the ambiguous language of theCharter. Since judges are not democratically elected, and cannot be replaced in office by the public will, their own view of the Charter of Rights and Freedoms has no legitimacy. The question pertaining to the legitimacy of constitutional review is poignant for every constitutional democracy and is not unique to Canada. It has been the subject of a vast body of literature in the past century. The two most common responses to this question are as follows. First, precisely because the Constitution’s language is ambiguous, it needs interpretation by an authoritative institution. For the reason that part of the purpose of the Charter, indeed of the entire Constitution, is to protect minority groups and individuals, it should not be enforced and interpreted by majoritarian institutions such as the legislature. Judges are not elected and are not accountable, and therefore they are best capable of interpreting the constitution in a way that will protect minorities. Second, while courts have the power to strike down legislation based on their reading of the constitution, in reality judicial decisions are not final, and legislatures have their ways to respond to a judicial decision with which they do not agree. The constitutional mechanisms for such legislative action are judicial appointments, constitutional amendments, and in Canada, the use of thenotwithstanding clause. Judicial Independence Introduction The judiciary is one of threebranches of government in Canada: executive, legislative and judicial. Each of these branches has responsibilities rooted in Canada’s Constitution and history. Judicial independence is foundational to the constitutional role of the judiciary. Courts must be “completely independent of any other entity,” including other branches of government, social groups, and individuals.[1] A court must not only be independent, the public must also see it as independent. [2] The Importance of Judicial Independence Judicial independence ensures that the judiciary can properly exercise its judicial responsibilities. That includes adjudicating individual disputes. Judges should make decisions “based solely on the requirements of law and justice.”[3] The judiciary is also the protector of the Constitution and the values it embodies.[4] These values include the rule of law, democracy, equality, and fundamental justice.[5] Two sources make the judiciary the protector of the Constitution. First, Canada is a federal country, meaning it has two levels of government: central and provincial. Sections 91 and 92 of the Constitution Act, 1867 give different powers to these levels of government. A federal system requires an independent arbiter (the judiciary) to resolve disputes between the two levels of government. [6] Second, the judiciary is responsible for protecting our basic human rights contained in the Canadian Charter of Rights and Freedoms, which is part of the Canadian Constitution. An independent judiciary protects us against government action that violates these rights.[7] The importance of judicial independence for protecting the Constitution is also tied to the principle of separation of powers. Separation of powers means that the branches of government should be independent of one another.[8] Each of the branches exercises separate and distinct functions that the other branches cannot interfere with. However, this does not mean that each of the branches is completely separate from the other. The branches of government have a particular relationship with one another based on their functions.[9]The Supreme Court of Canada has said that the relationship between the judiciary and the other branches is a depoliticized one. This means that the legislature and executive cannot put political pressure on the judiciary, and the judiciary should not speak publicly on issues that could come before the courts.[10] Finally, judicial independence is essential for upholding the rule of law, which means that governments can only take actions that are permitted by law and the Constitution. [11] The judiciary makes sure that government actions and laws are consistent with the Constitution.