Script 230 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
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 uses section 33 (the notwithstanding provision of the Charter) to say that the challenged law operates in spite of the Charter. (Details of the “notwithstanding clause” are provided later in this script). As well, the Charter controls the actions of state officials such as the police. You can see both the Constitution and the Charter 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:
- 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 gives 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 consider 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”
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 236 – “Human Rights and Discrimination Protection”, and script 270 – “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 specific steps are as follows:
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 just 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.
For more information, check the Charter itself (http://laws.justice.gc.ca/en/charter), script 200, called “Charter of Rights and Freedoms: Legal Rights,” and script 232, called “Charter of Rights and Freedoms: Equality Rights.”
[updated June 2012]
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