Charter Rights: Overview - Revision history

Elena Renderos at 06:15, 10 November 2020

2020-11-10T06:15:58Z

Elena Renderos: Elena Renderos moved page Charter Rights: Overview (No. 230) to Charter Rights: Overview: Removing recording numbers from page names

2020-09-12T05:07:22Z

Elena Renderos moved page Charter Rights: Overview (No. 230) to Charter Rights: Overview: Removing recording numbers from page names

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Drew Jackson: /* To enforce your Charter rights */

2019-03-31T17:03:59Z

To enforce your Charter rights

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	If a private individual, organization, or company violates your rights, you may be able to assert a claim under human rights law. Depending on the situation, you might be able to rely on the BC ''Human Rights Code'' or the Canadian ''Human Rights Act''. For more, see our information on [[Human Rights and Discrimination Protection (No. 236)\|human rights and discrimination protection (no. 236)]], and [[Protection Against Job Discrimination (No. 270)\|protection against job discrimination (no. 270)]].		If a private individual, organization, or company violates your rights, you may be able to assert a claim under human rights law. Depending on the situation, you might be able to rely on the BC ''Human Rights Code'' or the Canadian ''Human Rights Act''. For more, see our information on [[Human Rights and Discrimination Protection (No. 236)\|human rights and discrimination protection (no. 236)]], and [[Protection Against Job Discrimination (No. 270)\|protection against job discrimination (no. 270)]].

	===To enforce your Charter rights===		==To enforce your Charter rights==
	Canadian courts interpret and enforce the Charter. Courts have the power to strike down and invalidate laws or government actions. They will do so if necessary to defend a protected right or freedom. If you think a provincial or federal law or action violates your Charter rights, you can ask a court to strike down the law or grant another '''remedy'''. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected.		Canadian courts interpret and enforce the Charter. Courts have the power to strike down and invalidate laws or government actions. They will do so if necessary to defend a protected right or freedom. If you think a provincial or federal law or action violates your Charter rights, you can ask a court to strike down the law or grant another '''remedy'''. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected.

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	In considering a Charter challenge, the court will generally assess two questions.		In considering a Charter challenge, the court will generally assess two questions.

	====First, were your rights under the Charter violated?====		===First, were your rights under the Charter violated?===
	You have to show the court that one of your Charter rights was violated. This usually means persuading the judge that a law or government action violated a specific Charter right. For example, you might complain that a law restricting what signs you can put in your window violates freedom of expression. If you prove a violation, the court will move on to a second question.		You have to show the court that one of your Charter rights was violated. This usually means persuading the judge that a law or government action violated a specific Charter right. For example, you might complain that a law restricting what signs you can put in your window violates freedom of expression. If you prove a violation, the court will move on to a second question.

	====Second, can the government justify the law as a reasonable limit?====		===Second, can the government justify the law as a reasonable limit?===
	If a court finds the government violated your rights, the next step depends on what caused the violation: was it a written law, or was it an action by government? If government action caused the violation, the government does not get a chance to justify the violation.		If a court finds the government violated your rights, the next step depends on what caused the violation: was it a written law, or was it an action by government? If government action caused the violation, the government does not get a chance to justify the violation.

Drew Jackson at 17:03, 31 March 2019

2019-03-31T17:03:26Z

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	Typically, the government tries to show the law’s objective is important to Canadian society, and the violation of Charter rights is minimal. The more severe the violation, the harder it is for government to justify it. Charter cases can be hard to resolve because courts have to consider and balance many competing interests. The court must go beyond the narrow facts of one case and consider the competing interests in relation to a law and how it operates for society.		Typically, the government tries to show the law’s objective is important to Canadian society, and the violation of Charter rights is minimal. The more severe the violation, the harder it is for government to justify it. Charter cases can be hard to resolve because courts have to consider and balance many competing interests. The court must go beyond the narrow facts of one case and consider the competing interests in relation to a law and how it operates for society.

	===Remedies if a Charter right is violated===		==Remedies if a Charter right is violated==
	If you prove a violation of a Charter right, and the government cannot justify the violation as a reasonable limit under section 1, the next question is what kind of remedy or consequence is appropriate. Different kinds of remedies apply to different types of cases.		If you prove a violation of a Charter right, and the government cannot justify the violation as a reasonable limit under section 1, the next question is what kind of remedy or consequence is appropriate. Different kinds of remedies apply to different types of cases.

Drew Jackson at 17:01, 31 March 2019

2019-03-31T17:01:12Z

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	{{REVIEWEDPLS \| reviewer = [https://www.vancrimlaw.com/Lawyers/Brock-Martland-QC.shtml Brock Martland], Martland & Saulnier\|date= July 2018}} {{Dial-A-Law TOC\|expanded = rights}}		{{REVIEWEDPLS \| reviewer = [https://www.vancrimlaw.com/Lawyers/Brock-Martland-QC.shtml Brock Martland], Martland & Saulnier\|date= July 2018}} {{Dial-A-Law TOC\|expanded = rights}}
	The ''Charter of Rights and Freedoms'' is one of Canada’s most important laws. Learn the key rights and freedoms protected by the Charter and how to enforce your Charter rights.		The ''Charter of Rights and Freedoms'' is one of Canada’s most important laws. Learn the key rights and freedoms protected by the Charter and how to enforce your '''Charter rights'''.

	==Understand your legal rights==		==Understand your legal rights==
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	In other cases, an individual (personal) remedy is ordered. Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers '''appropriate and just in the circumstances'''. If a government official took the action — for example, a police officer conducted an unreasonable search — the court will often give an individual remedy that helps only the person whose rights were violated. The court may say that (for example) drugs found during an illegal search can’t be used as evidence in the accused person’s criminal trial. This helps the accused person, but it doesn’t change the law for anyone else.		In other cases, an individual (personal) remedy is ordered. Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers '''appropriate and just in the circumstances'''. If a government official took the action — for example, a police officer conducted an unreasonable search — the court will often give an individual remedy that helps only the person whose rights were violated. The court may say that (for example) drugs found during an illegal search can’t be used as evidence in the accused person’s criminal trial. This helps the accused person, but it doesn’t change the law for anyone else.


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Elena Renderos at 05:33, 29 March 2019

2019-03-29T05:33:53Z

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	{{~~Dial~~-A-~~Law Blurb~~}}		{{REVIEWEDPLS \| reviewer = [https://www.vancrimlaw.com/Lawyers/Brock-Martland-QC.shtml Brock Martland], Martland & Saulnier\|date= July 2018}} {{Dial-A-Law TOC\|expanded = rights}}

	{{Dial-A-Law TOC\|expanded = rights}}
	The ''Charter of Rights and Freedoms'' is one of Canada’s most important laws. Learn the key rights and freedoms protected by the Charter and how to enforce your Charter rights.		The ''Charter of Rights and Freedoms'' is one of Canada’s most important laws. Learn the key rights and freedoms protected by the Charter and how to enforce your Charter rights.

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	{\| class="wikitable"		{\| class="wikitable"
	\|align="left"\|'''Tip'''		\|align="left"\|'''Tip'''
	For more detail on legal and equality rights under the Charter, see our information on [[Charter of Rights ~~and Freedoms~~: Legal Rights (~~Script~~ 200)\|legal rights (no. 200)]] and [[Charter of Rights ~~and Freedoms~~: Equality Rights (~~Script~~ 232)\|equality rights (no. 232)]].		For more detail on legal and equality rights under the Charter, see our information on [[Charter Rights: Legal Rights (No. 200)\|legal rights (no. 200)]] and [[Charter Rights: Equality Rights (No. 232)\|equality rights (no. 232)]].
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	You can’t rely on the Charter to challenge every violation of your rights. The Charter controls '''laws''' and '''government actions'''. It doesn’t control private citizens, businesses, or organizations. Before you can claim the Charter’s protection, you must show that the government, or some agency very closely connected to government, such as a school board or labour relations board, violated your rights.		You can’t rely on the Charter to challenge every violation of your rights. The Charter controls '''laws''' and '''government actions'''. It doesn’t control private citizens, businesses, or organizations. Before you can claim the Charter’s protection, you must show that the government, or some agency very closely connected to government, such as a school board or labour relations board, violated your rights.

	If a private individual, organization, or company violates your rights, you may be able to assert a claim under human rights law. Depending on the situation, you might be able to rely on the BC ''Human Rights Code'' or the Canadian ''Human Rights Act''. For more, see our information on [[Human Rights and Discrimination Protection (~~Script~~ 236)\|human rights and discrimination protection (no. 236)]], and [[Protection Against Job Discrimination (~~Script~~ 270)\|protection against job discrimination (no. 270)]].		If a private individual, organization, or company violates your rights, you may be able to assert a claim under human rights law. Depending on the situation, you might be able to rely on the BC ''Human Rights Code'' or the Canadian ''Human Rights Act''. For more, see our information on [[Human Rights and Discrimination Protection (No. 236)\|human rights and discrimination protection (no. 236)]], and [[Protection Against Job Discrimination (No. 270)\|protection against job discrimination (no. 270)]].

	===To enforce your Charter rights===		===To enforce your Charter rights===
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	In other cases, an individual (personal) remedy is ordered. Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers '''appropriate and just in the circumstances'''. If a government official took the action — for example, a police officer conducted an unreasonable search — the court will often give an individual remedy that helps only the person whose rights were violated. The court may say that (for example) drugs found during an illegal search can’t be used as evidence in the accused person’s criminal trial. This helps the accused person, but it doesn’t change the law for anyone else.		In other cases, an individual (personal) remedy is ordered. Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers '''appropriate and just in the circumstances'''. If a government official took the action — for example, a police officer conducted an unreasonable search — the court will often give an individual remedy that helps only the person whose rights were violated. The court may say that (for example) drugs found during an illegal search can’t be used as evidence in the accused person’s criminal trial. This helps the accused person, but it doesn’t change the law for anyone else.



	~~[updated July 2018]~~

	~~'''The above was last reviewed for legal accuracy by [https://www.vancrimlaw.com/Lawyers/Brock-Martland-QC.shtml Brock Martland], Martland & Saulnier.'''~~

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Drew Jackson: Drew Jackson moved page Charter of Rights and Freedoms: Overview (Script 230) to Charter Rights: Overview (No. 230): align with new Dial-A-Law website

2019-03-22T01:02:02Z

Drew Jackson moved page Charter of Rights and Freedoms: Overview (Script 230) to Charter Rights: Overview (No. 230): align with new Dial-A-Law website

← Older revision		Revision as of 01:02, 22 March 2019
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Dial-A-Law at 06:07, 7 March 2019

2019-03-07T06:07:00Z

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Dial-A-Law at 22:30, 27 July 2018

2018-07-27T22:30:11Z

Dial-A-Law: /* More information */

2016-11-29T00:03:09Z

More information

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	==More information==		==More information==
	For more information, check the [http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38 Charter] itself, script [[Charter of Rights and Freedoms: Legal Rights (Script 200)\|200]], called ~~“Charter~~ of Rights and Freedoms: Legal Rights,” and script [[Charter of Rights and Freedoms: Equality Rights (Script 232)\|232]], called ~~“Charter~~ of Rights and Freedoms: Equality Rights.”		For more information, check the [http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38 Charter] itself, script [[Charter of Rights and Freedoms: Legal Rights (Script 200)\|200]], called “''Charter of Rights and Freedoms'': Legal Rights,” and script [[Charter of Rights and Freedoms: Equality Rights (Script 232)\|232]], called “''Charter of Rights and Freedoms'': Equality Rights.”

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	==Section 1 allows reasonable limits on Charter rights==		==Section 1 allows reasonable limits on Charter rights==
	Charter rights and freedoms are not absolute. The Charter and the courts recognize that governments can make laws in the broader public interest, even if a law violates the Charter. In such a case, Canada’s Parliament or a provincial legislature can try to justify the violation—under section 1—as a reasonable limit on the right. Section 1 says that a reasonable limit must be prescribed by law and demonstrably (clearly) justified in a free and democratic society. If a government ~~uses~~ section 1, a court can then decide if the government has justified the Charter violation. If so, the court may allow the violation.		Charter rights and freedoms are not absolute. The Charter and the courts recognize that governments can make laws in the broader public interest, even if a law violates the Charter. In such a case, Canada’s Parliament or a provincial legislature can try to justify the violation—under section 1—as a reasonable limit on the right. Section 1 says that a reasonable limit must be prescribed by law and demonstrably (clearly) justified in a free and democratic society. If a government tries to use section 1, a court can then decide if the government has justified the Charter violation. If so, the court may allow the violation.

	But section 1 applies only to written laws, not to government action, because it requires any limit on a Charter right to be “prescribed by law”. So when government action—not a written law—violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional.		But section 1 applies only to written laws, not to government action, because it requires any limit on a Charter right to be “prescribed by law”. So when government action—not a written law—violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional. Lawyers call it a ''Charter Breach''.

	The essential questions courts must decide under section 1 are whether the law has ~~a very~~ important objective and whether the government chose a proportionate way to meet that objective—a way that interferes as little as possible with Charter rights. For example, could the government achieve its objective in another way, without violating Charter rights? Does the law do more harm than good?		The essential questions courts must decide under section 1 are whether the law has an important objective and whether the government chose a proportionate way to meet that objective—a way that interferes as little as possible with Charter rights. For example, could the government achieve its objective in another way, without violating Charter rights? Does the law do more harm than good?

	==Section 33, the notwithstanding clause==		==Section 33, the notwithstanding clause==
	If a law cannot be justified as a reasonable limit on a right or freedom, in some cases, Parliament or a provincial legislature can ~~say—under~~ section 33—that the law operates notwithstanding (despite) section 2 or sections 7 to 15 of the Charter. The Canadian Parliament has never used this notwithstanding clause, but Quebec, Alberta, Saskatchewan, and Yukon have.		If a law cannot be justified as a reasonable limit on a right or freedom, in some cases, Parliament or a provincial legislature can declare—under section 33—that the law operates notwithstanding (despite) section 2 or sections 7 to 15 of the Charter. The Canadian Parliament has never used this notwithstanding clause, but Quebec, Alberta, Saskatchewan, and Yukon have.

	==The Charter applies to government, not the private sector==		==The Charter applies to government, not the private sector==
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	Canadian courts interpret and enforce the Charter. The courts have described themselves as the guardians of the Charter. In that role, judges have the power to strike down and invalidate laws or other government actions. They will do so if necessary to defend a protected right or freedom. If you think a provincial or federal law or action violates your Charter rights, you can ask a court to do several things.		Canadian courts interpret and enforce the Charter. The courts have described themselves as the guardians of the Charter. In that role, judges have the power to strike down and invalidate laws or other government actions. They will do so if necessary to defend a protected right or freedom. If you think a provincial or federal law or action violates your Charter rights, you can ask a court to do several things.

	What a court can do depends on what you ask for. For example, if you say that a law violates the Charter, a court will decide if the law actually does violate the Charter. If the court finds a violation, the government can try to justify the violation under section 1. You may ask a court to declare that your personal rights have been violated or to give you a specific remedy. In criminal cases, for example, the accused person can ask the court to end the trial or to exclude evidence obtained in violation of the Charter. Or you may ask a court for a general remedy not specific to your case, such as striking down a law entirely. The court will generally assess these questions:		What a court can do depends on what you ask for. For example, if you say that a law violates the Charter, a court will decide if the law actually does violate the Charter. If the court finds a violation, the government can try to justify the violation under section 1. You may ask a court to declare that your personal rights have been violated or to give you a specific and personal remedy. In criminal cases, for example, the accused person can ask the court to end the trial or to exclude evidence obtained in violation of the Charter. Or you may ask a court for a general remedy not specific to your case, such as striking down a law entirely. The court will generally assess these questions:

	:'''First: was your Charter right violated?'''		:'''First: was your Charter right violated?'''
	:You have to show the court that one of your Charter rights was violated. This usually means persuading the judge that the law or government action violated a specific Charter right. For example, you might complain that a law restricting what signs you can put in your window violates freedom of expression. But even if you prove a violation, Charter rights are balanced against the rights of others and the interests of society, as explained in the earlier ~~paragraph~~ on reasonable limits under section 1.		:You have to show the court that one of your Charter rights was violated. This usually means persuading the judge that the law or government action violated a specific Charter right. For example, you might complain that a law restricting what signs you can put in your window violates freedom of expression. But even if you prove a violation, Charter rights are balanced against the rights of others and the interests of society, as explained in the earlier discussion on reasonable limits under section 1.

	: '''Second: can the government justify—under section 1—a law that violates the Charter right?'''		: '''Second: can the government justify—under section 1—a law that violates the Charter right?'''
	:If a court finds that the government violated your rights, the next step depends on what caused the violation: was it a written law—or action by the government or a government actor? If government action caused the violation, the government does not get a chance to justify it under section 1. In this case, the court just decides the right remedy (which the next section explains). But if a written law violated your rights, the court decides whether the government can justify the violation under section 1. Is the violation reasonable and justified in a free and democratic society? To decide that, the court looks at several things, including whether the government has an important objective in violating that right.		:If a court finds that the government violated your rights, the next step depends on what caused the violation: was it a written law—or was it an action by the government or a government actor? If government action caused the violation, the government does not get a chance to justify it under section 1. In this case, the court just decides the right remedy (which the next section explains). But if a written law violated your rights, the court decides whether the government can justify the violation under section 1. Is the violation reasonable and justified in a free and democratic society? To decide that, the court looks at several things, including whether the government has an important objective in violating that right.

	:Specifically, a court will ask if the government acted reasonably in achieving its objective. If the court finds that the government’s objective is important, the court must decide if the government is acting in a reasonable and ~~justified~~ way to achieve that objective. The Supreme Court of Canada says this usually depends on the answers to three more questions:		:Specifically, a court will ask if the government acted reasonably in achieving its objective. If the court finds that the government’s objective is important, the court must decide if the government is acting in a reasonable and proportionate way to achieve that objective. The Supreme Court of Canada says this usually depends on the answers to three more questions:
	:# Are the means that the government used to achieve its objective rationally connected to that objective?		:# Are the means that the government used to achieve its objective rationally connected to that objective?
	:# Could the government have achieved the same objective in some other way, without violating anyone’s rights or freedoms, or violating them to a lesser degree?		:# Could the government have achieved the same objective in some other way, without violating anyone’s rights or freedoms, or violating them to a lesser degree?
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	:The government must prove that the violation of the Charter is reasonable under section 1. Often, the government tries to show that the law’s '''objective''' is important to Canadian society, and that the violation of Charter rights is minimal.		:The government must prove that the violation of the Charter is reasonable under section 1. Often, the government tries to show that the law’s '''objective''' is important to Canadian society, and that the violation of Charter rights is minimal.

	:The more severe the violation, the harder it is for government to justify it~~. Only after the court considers all these things, can it decide if you deserve a remedy for the Charter violation~~. Charter cases can be complex and hard to resolve because courts have to consider and balance many competing interests. The court must go beyond the narrow facts of one case and consider the competing interests in relation to a law and how it ~~operate~~ for society.		:The more severe the violation, the harder it is for government to justify it. Charter cases can be complex and hard to resolve because courts have to consider and balance many competing interests. The court must go beyond the narrow facts of one case and consider the competing interests in relation to a law and how it operates for society.

	==Individual and broad remedies if Charter rights violated==		==Individual and broad remedies if Charter rights violated==
	If you prove a violation of a Charter right, and the government cannot justify it under section 1, the next question is what kind of remedy or consequence is appropriate. Different kinds of remedies apply to different types of cases. Section 52(1) of the ''Constitution Act''~~, 1982~~ says that any law inconsistent with the Constitution is of no force or effect. So a court may declare that a law is unconstitutional. This is what the news media mean when they talk about a court striking down a law. In such a case, a court may “suspend” its declaration to give the government time to pass a new law that will be valid.		If you prove a violation of a Charter right, and the government cannot justify it under section 1, the next question is what kind of remedy or consequence is appropriate. Different kinds of remedies apply to different types of cases. Section 52(1) of the ''Constitution Act, 1982'' says that any law inconsistent with the Constitution is of no force or effect. So a court may declare that a law is unconstitutional. This is what the news media mean when they talk about a court striking down a law. In such a case, a court may “suspend” its declaration to give the government time to pass a new law that will be valid.

	In other cases, an individual (personal) remedy is necessary. Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers appropriate and just in the circumstances. The Charter gives courts ~~a lot~~ of discretion about the kind of remedies they can order if a Charter right is violated.		In other cases, an individual (personal) remedy is necessary. Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers appropriate and just in the circumstances. The Charter gives courts lots of discretion about the kind of remedies they can order if a Charter right is violated.

	The type of remedy a court gives normally depends on the type of government action that violates the Charter. If a government official took the action—for example, a police officer conducted an unreasonable search—the court will give an individual remedy that helps only the victim of the search. (In that example, the court may say that the drugs found during the illegal search can’t be used as evidence in the criminal trial. This helps the accused person, but it doesn’t change the law for anyone else). In other cases, a broad remedy, such as striking down the law, may be necessary. For example, if the government passed a law that discriminated based on ~~sex~~, the court would give a remedy that helps everyone affected by the law.		The type of remedy a court gives normally depends on the type of government action that violates the Charter. If a government official took the action—for example, a police officer conducted an unreasonable search—the court will give an individual remedy that helps only the victim of the search. (In that example, the court may say that the drugs found during the illegal search can’t be used as evidence in the criminal trial. This helps the accused person, but it doesn’t change the law for anyone else). In other cases, a broad remedy, such as striking down the law, may be necessary. For example, if the government passed a law that discriminated based on gender, the court would give a remedy that helps everyone affected by the law.

	Usually, when someone illegally interferes with your rights, you can sue them to recover any losses you suffer as a result. But this does not help ~~someone~~ charged with a crime after an illegal search or after they've confessed to a crime without being told of their right to speak to a lawyer. In this type of case, a court can exclude evidence in a criminal trial if the way it was obtained violated a Charter right. A court will exclude evidence only if the accused person can show that using the evidence would bring the administration of justice into disrepute.		Usually, when someone illegally interferes with your rights, you can sue them to recover any losses you suffer as a result. But this does not help a person charged with a crime after an illegal search or after they've confessed to a crime without being told of their right to speak to a lawyer. In this type of case, a court can exclude evidence in a criminal trial if the way it was obtained violated a Charter right. A court will exclude evidence only if the accused person can show that using the evidence would bring the administration of justice into disrepute.

	In other cases, the court may be able to do something else, like stop a prosecution~~, order one side to pay the other side's legal costs,~~ or declare that certain rights were violated. The court will always decide what is fair and appropriate ~~depending~~ on the facts of the specific case.		In other cases, the court may be able to do something else, like stop a prosecution or declare that certain rights were violated. The court will always decide what is fair and appropriate based on the facts of the specific case.

	==More information==		==More information==
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	[updated ~~November 2016~~]		[updated July 2018]

			'''The above was last edited by John Blois.'''

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