Difference between revisions of "Charter Rights: Overview"

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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}}
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.
==What you should know==


{{Dial-A-Law TOC|expanded = rights}}
===The Charter protects a broad range of rights and freedoms===
==The Charter protects several rights and freedoms—but there are reasonable limits==
The [https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html ''Charter of Rights and Freedoms''] is part of Canada’s Constitution and protects a broad range of rights and freedoms.
The ''[http://laws-lois.justice.gc.ca/eng/Const/page-15.html Canadian Charter of Rights and Freedoms]'' is part of Canada’s [http://laws-lois.justice.gc.ca/eng/Const/index.html Constitution]. It protects a broad range of rights and freedoms. The Charter also has remedies if it is violated.
If a court decides that a law (or part of a law) or a government action (for example, police action) violates the Charter, that law, or action, is not valid. But Charter rights are not absolute. If it’s a law (not an action) that violates the Charter, the government can try to justify the law as a reasonable limit under section 1. Or the government can use section 33 (the notwithstanding clause) to say that the law operates despite (or notwithstanding) the Charter. (The reasonable limits clause and the notwithstanding clause are explained later in this script.)


The Charter guarantees the following freedoms and rights:
The Charter guarantees certain '''fundamental freedoms''':


* '''Fundamental freedoms'''—section 2 guarantees freedom of:
* freedom of conscience and religion
** association
* freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
** peaceful assembly
* freedom of peaceful assembly
** conscience and religion
* freedom of association
** thought, belief, opinion, and expression, including freedom of the press and other media


* '''Democratic rights'''—sections 3, 4, and 5 cover the right to vote and the maximum time between elections
The Charter guarantees '''democratic rights'''. It gives every Canadian citizen the right to vote in federal and provincial elections. It sets the maximum time between elections.


* '''Mobility rights'''—section 6 guarantees to Canadian citizens and permanent residents the right to live and work anywhere in Canada
The Charter guarantees '''mobility rights'''. It gives every citizen the right to enter, remain in, and leave Canada. It gives everyone the right to move to and pursue a living in any province.


* '''Legal rights'''—sections 7 to 14 contain the rights to:
The Charter guarantees a number of '''legal rights''', including the right to:
** life, liberty, and security of the person
** be free from '''unreasonable''' search or seizure
** not be '''arbitrarily''' detained or imprisoned
** be informed promptly of the reasons for any arrest or detention and be released if the reasons are not valid
** have a lawyer, if you are arrested
** a fair and public trial within a reasonable time, by an impartial tribunal, if you are charged with a crime
** not give evidence against yourself
** be presumed innocent
** be free from cruel and unusual punishment
** be granted reasonable bail if appropriate
** a court-appointed interpreter


* '''Equality rights'''—section 15 ensures equal benefit and protection of the law without discrimination based on personal traits such as race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.
* life, liberty and security of the person
* be secure against unreasonable search or seizure
* not be arbitrarily detained or imprisoned
* be informed promptly of the reasons for any arrest or detention
* have a lawyer, if you are arrested
* be presumed innocent until proven guilty in a fair and public hearing by an impartial tribunal, if you are charged with a crime
* not be subjected to cruel and unusual punishment
* not have evidence you give be used against you


* '''Language rights'''—section 16 makes English and French the official languages of Canada. Section 23 protects minority language education rights in certain circumstances.
The Charter guarantees '''equality rights'''. It says everyone is equal before the law and has the right to equal protection of the law, without discrimination. It highlights the right to be free of discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.


Other sections deal with enforcing Charter rights and freedoms, whom they can be used against, and how courts have to interpret the Charter.
The Charter also makes English and French the '''official languages of Canada'''.


==Section 1 allows reasonable limits on Charter rights==
{| class="wikitable"
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.
|align="left"|'''Tip'''
For more detail on legal and equality rights under the Charter, see our information on [[Charter Rights: Legal Rights|legal rights]] and [[Charter Rights: Equality Rights|equality rights]].
|}
===Charter rights and freedoms are not absolute===
The Charter itself recognizes that some laws might violate the Charter yet be justifiable in the broader public interest. Where a law violates a Charter right, a government can try to justify the violation as a '''reasonable limit''' under section 1 of the Charter. Under that section, a reasonable limit needs to be “prescribed by law” and “demonstrably justified in a free and democratic society."


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.
If a government tries to rely on section 1 to justify a Charter violation, a court can decide if the violation is a reasonable limit. The court will look at 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?


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?
Section 1 applies only to written laws. It does not apply to '''government actions'''. Examples of government actions would be the actions of a police officer in making an arrest, or a decision by a government department to deny benefits. In these situations, where a government action violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional. Lawyers call this a Charter breach.


==Section 33, the notwithstanding clause==
===The Charter includes a “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, a federal or provincial government can try to declare that the law operates '''notwithstanding''' the Charter. The Canadian Parliament has never used this notwithstanding clause, but Quebec, Alberta, Saskatchewan, and Yukon have done so.


==The Charter applies to government, not the private sector==
===The Charter applies to government, not the private sector===
You can’t use the Charter to challenge every possible violation of your rights. The Charter controls government laws and other 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 complain under the BC ''Human Rights Code'' or the ''Canadian Human Rights Act''. For more information on this, check script [[Human Rights and Discrimination Protection (Script 236)|236]] on “Human Rights and Discrimination Protection”, and script [[Protection Against Job Discrimination (Script 270)|270]] on “Protection Against Job Discrimination”.  
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.


==Enforcing Charter 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|human rights and discrimination protection]], and [https://dialalaw.peopleslawschool.ca/job-discrimination/ protection against job discrimination].
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:
==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.


:'''First: was your Charter right violated?'''
What a court can do depends on what you ask for. You may ask a court to declare that your personal rights have been violated, or to give you a personal remedy. In criminal cases, for example, an accused person can ask the court to end the trial or to exclude evidence obtained in violation of the Charter.
: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?'''
Or you may ask a court for a general remedy not specific to your case, such as striking down a law entirely.
: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.


: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:
In considering a Charter challenge, the court will generally assess two questions.
:# 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?
:# 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.  
====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.


: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.
====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.


==Individual and broad remedies if Charter rights violated==
If a written law violated your rights, the court will then consider whether the government can justify the violation as a reasonable limit under section 1 of the Charter. Charter rights are balanced against the rights of others and the interests of society. The court will consider: Is the violation reasonable and justified in a free and democratic society? To decide that, the court looks at several things, including whether the benefits of the law are significant enough to justify violating a Charter right, and whether the government could have achieved its objectives in some other way that did not violate anyone’s rights or freedoms.
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.  
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.


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.
==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.


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.
In some cases, a broad remedy may be necessary, such as declaring that a law is unconstitutional. This is often referred to as ”striking down a law." For example, if the government passed a law that discriminated based on gender, the court could strike down the law, giving a remedy that helps everyone affected by the law.
 
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.
 
==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.”
 
 
 
 
 
==The Charter protects several rights and freedoms==
The ''Canadian Charter of Rights and Freedoms'' is part of Canada’s Constitution. If a court decides that a law, or part of a law, or an action by a government actor or entity, violates the Charter, that law, or action, is not valid—unless the Canadian Parliament or a provincial legislature can justify the Charter violation as being necessary as a reasonable limit, or the legislature uses section 33 (the notwithstanding clause of the Charter) to say that the challenged law operates in spite of the Charter. (The “reasonable limits” and “notwithstanding” clauses are explained later in this script). As well, the Charter controls the actions of state officials such as the police. Both the Constitution and the Charter are on the Canadian government website at http://laws-lois.justice.gc.ca/eng/const.
 
The Charter guarantees the following freedoms and rights:
*'''Fundamental freedoms'''—section 2 guarantees freedom of:
**association
**peaceful assembly
**conscience and religion
**thought, belief, opinion, and expression, including freedom of the press and other media
 
*'''Democratic rights'''—sections 3, 4, and 5 cover the right to vote and the maximum time between elections
*'''Mobility rights'''—section 6 guarantees to Canadian citizens and permanent residents the right to live and work anywhere in Canada
*'''Legal rights'''—sections 7 to 14 contain the rights to:
**life, liberty, and security of the person
** be free from '''unreasonable''' search or seizure
**not be '''arbitrarily''' detained or imprisoned
**be informed promptly of the reasons for any arrest or detention and be released if the reasons are not valid
**have a lawyer, if you are arrested
**a fair and public trial within a reasonable time, by an impartial tribunal, if you are charged with a crime
**not give evidence against yourself
**be presumed innocent
**be free from cruel and unusual punishment
**be granted reasonable bail if appropriate
**a court-appointed interpreter
 
*'''Equality rights'''—section 15 ensures equal benefit and protection of the law without discrimination based on personal traits such as race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.
*'''Language rights'''—section 16 makes English and French the official languages of Canada. Section 23 protects minority language education rights in certain circumstances.
 
Other sections deal with enforcing Charter rights and freedoms, whom they can be used against, and how courts have to interpret the Charter.
 
==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 a Charter right or freedom. In such a case, a court will ask if the government can justify the violation under section 1. This section says that Charter rights and freedoms are subject to reasonable limits prescribed by law as can be demonstrably (clearly) justified in a free and democratic society. A court may allow a violation of a Charter right if the government can meet this section 1 test. 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''' violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional.
 
==The “notwithstanding clause” —section 33==
The federal and provincial governments can override specific Charter rights in certain situations. They can say that a law operates “notwithstanding” (in spite of) some Charter rights. So far, governments have used this power only rarely.
 
==The Charter controls government, not the private sector==
You can’t use the Charter to challenge every possible violation of your rights. The Charter controls government laws and other 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 complain under the BC ''Human Rights Code'' or the ''Canadian Human Rights Act''. For more information on this, check script [[Human Rights and Discrimination Protection (Script 236)|236]] on"Human Rights and Discrimination Protection”, and script [[Protection Against Job Discrimination (Script 270)|270]] on “Protection Against Job Discrimination”.
 
==Enforcing Charter rights==
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 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?===
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?===
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:
#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?
#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 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==
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 make 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.
 
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.
 
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.
 
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.
 
==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”.
 
 
[updated November 2016]
 
 
----
----


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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Latest revision as of 06:15, 10 November 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Brock Martland, Martland & Saulnier in July 2018.

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.

What you should know

The Charter protects a broad range of rights and freedoms

The Charter of Rights and Freedoms is part of Canada’s Constitution and protects a broad range of rights and freedoms.

The Charter guarantees certain fundamental freedoms:

  • freedom of conscience and religion
  • freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
  • freedom of peaceful assembly
  • freedom of association

The Charter guarantees democratic rights. It gives every Canadian citizen the right to vote in federal and provincial elections. It sets the maximum time between elections.

The Charter guarantees mobility rights. It gives every citizen the right to enter, remain in, and leave Canada. It gives everyone the right to move to and pursue a living in any province.

The Charter guarantees a number of legal rights, including the right to:

  • life, liberty and security of the person
  • be secure against unreasonable search or seizure
  • not be arbitrarily detained or imprisoned
  • be informed promptly of the reasons for any arrest or detention
  • have a lawyer, if you are arrested
  • be presumed innocent until proven guilty in a fair and public hearing by an impartial tribunal, if you are charged with a crime
  • not be subjected to cruel and unusual punishment
  • not have evidence you give be used against you

The Charter guarantees equality rights. It says everyone is equal before the law and has the right to equal protection of the law, without discrimination. It highlights the right to be free of discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

The Charter also makes English and French the official languages of Canada.

Tip

For more detail on legal and equality rights under the Charter, see our information on legal rights and equality rights.

Charter rights and freedoms are not absolute

The Charter itself recognizes that some laws might violate the Charter yet be justifiable in the broader public interest. Where a law violates a Charter right, a government can try to justify the violation as a reasonable limit under section 1 of the Charter. Under that section, a reasonable limit needs to be “prescribed by law” and “demonstrably justified in a free and democratic society."

If a government tries to rely on section 1 to justify a Charter violation, a court can decide if the violation is a reasonable limit. The court will look at 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 1 applies only to written laws. It does not apply to government actions. Examples of government actions would be the actions of a police officer in making an arrest, or a decision by a government department to deny benefits. In these situations, where a government action violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional. Lawyers call this a Charter breach.

The Charter includes a “notwithstanding” clause

If a law cannot be justified as a reasonable limit on a right or freedom, a federal or provincial government can try to declare that the law operates notwithstanding the Charter. The Canadian Parliament has never used this notwithstanding clause, but Quebec, Alberta, Saskatchewan, and Yukon have done so.

The Charter applies to government, not the private sector

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, and protection against job discrimination.

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.

What a court can do depends on what you ask for. You may ask a court to declare that your personal rights have been violated, or to give you a personal remedy. In criminal cases, for example, an 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.

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

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.

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 written law violated your rights, the court will then consider whether the government can justify the violation as a reasonable limit under section 1 of the Charter. Charter rights are balanced against the rights of others and the interests of society. The court will consider: Is the violation reasonable and justified in a free and democratic society? To decide that, the court looks at several things, including whether the benefits of the law are significant enough to justify violating a Charter right, and whether the government could have achieved its objectives in some other way that did not violate anyone’s rights or freedoms.

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

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.

In some cases, a broad remedy may be necessary, such as declaring that a law is unconstitutional. This is often referred to as ”striking down a law." For example, if the government passed a law that discriminated based on gender, the court could strike down the law, giving a remedy that helps everyone affected by the law.

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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