Difference between revisions of "Charter Rights: Overview"

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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 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:

:===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 paragraph 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 your 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 your 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 justified 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?

:#Is the government’s objective important enough – and are the benefits of the law significant enough—to justify violating a Charter right?

#Is the government’s objective important enough – and are the benefits of the law significant enough—to justify violating a Charter right?

: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. 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.

==Individual and broad remedies if Charter rights violated==

@@ Line 46: / Line 46: @@
 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 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:
-:===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 paragraph 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 your 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 your 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 justified 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?
-:#Is the government’s objective important enough – and are the benefits of the law significant enough—to justify violating a Charter right?
+#Is the government’s objective important enough – and are the benefits of the law significant enough—to justify violating a Charter right?
-: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. 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.
 ==Individual and broad remedies if Charter rights violated==

Difference between revisions of "Charter Rights: Overview"

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