Difference between revisions of "Charter Rights: Legal Rights"

[http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-44 Sections 7 to 14] of the Charter guarantee everyone in Canada certain legal rights. Some of these rights require every person accused of a crime to be treated in a just and fair manner. And some of these rights existed long before the Charter. But they are now in the Constitution.

These legal rights are not absolute. Governments can limit them under section 1 of the Charter. Apart from these limits, the Charter protects the rights described below. The legal rights in the Charter most often apply in criminal cases, but they can also apply in other cases—for example, if you worked for a government agency and your employer tried to search you before you left the office after completing your shift.  

Section 7 gives everyone the right to life, liberty, and security of the person, and the right not to lose these things unless they are taken away according to principles of fundamental justice. The Charter protects more than just the right to physical liberty—the right not to be held against your will without proper process. It also protects the right to be free from physical assault and interference, and the threat of these. It protects conduct that people are free to pursue. If the government interferes with your liberty or security, it must follow fair laws and procedures.

An important right under section 7 is the '''right to remain silent''' if you are a suspect in a criminal offence. The police cannot force you to answer their questions, but they may continue to ask questions even if you say that you do not want to answer.

 

 

==Section 8: the right to be secure against unreasonable search and seizure==

Section 8 gives everyone the right to be secure against unreasonable search or seizure. Section 8 controls the laws that allow police to search your home or place of business, your phone or computer, your car, or even you, in certain cases. It also controls the actions of individual police officers. Section 8 protects your property or information if you have a reasonable expectation of privacy. So before police can search or seize, they must have a good reason to do so. For example, if the police suspect that you have stolen TVs and cell phones, they cannot just enter your apartment and search you and your rooms. Such a search would usually be unjustified if the police do not have a search warrant from a judge or justice of the peace. And even if they did have a warrant, it might not be properly issued. These are examples of searches that would be unreasonable and thus violate section 8. But section 8 does not protect your privacy in all cases. It depends on the context. Courts focus on the person’s expectation of privacy in the place, thing, or information at issue. For example, if you leave property at a friend’s house or put garbage out on the sidewalk for pick-up, you don’t have a reasonable expectation of privacy in those places. On the other hand, if you password-protect your personal computer at your home, you have a strong expectation of privacy.

At a criminal trial, the accused person can decide whether to testify (give evidence under oath) in their own defence. Other people generally cannot refuse to testify: they must do so if they receive a subpoena (a document ordering them to come to court and give evidence). If they refuse to testify, they can be charged with contempt of court. And anyone who lies in their testimony (the evidence they give) can be charged with perjury (lying under oath).

If a witness at the criminal trial of another person is asked about their own involvement in criminal activity, they must answer honestly. But a prosecutor cannot use their answers against them. Section 13 says that testimony from a witness showing they committed criminal activity cannot be used to prove they are guilty of that criminal activity. But a prosecutor can use a witness’s answer to show that they are lying under oath (committing perjury) in that case, or in a later case if they are charged and deny the criminal activity.

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?

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 gives courts lots of discretion about the remedy they can use if a Charter right is violated. 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. Whenever 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 an offence after an illegal search or after they confess to a crime without being told of their right to speak to a lawyer. A court may exclude (not allow) evidence if it was obtained in a way that interfered with a Charter right. But a court will exclude evidence only if the accused person can show that using the evidence would bring the administration of justice into disrepute.

The type of remedy a court uses often depends on the type of Charter right violated. For example, if the right to a trial within a reasonable time has been denied, and it is no longer possible for a person to properly defend themselves, the court may simply “stay” (terminate) the charges. That means the trial won’t proceed and the person won’t be convicted.

[updated July 2018]