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 governs 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.justice.gc.ca/en.

The Charter guarantees the following freedoms and rights:

• Fundamental freedoms – section 2 guarantees freedom of:
• association
• 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 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
• 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 are not absolute. The Charter and the courts recognize that the government can make laws for the good of most people, even if the law violates a Charter right or freedom. Any time a right is infringed by the government, a court will consider whether 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. An infringement of a Charter right can be allowed if the government can meet the test under section 1.

The “notwithstanding clause”
The federal and provincial governments have the power to override specific Charter rights in certain circumstances. That is, a government can declare that a law operates “notwithstanding” some Charter rights. So far, governments have used this power rarely to ensure that courts can’t say a law is invalid because it violates the Charter.

Charter applies to government, not to the private sector
You can’t use the Charter to challenge every possible denial of your rights. The Charter applies only to laws and other government actions or to government actors. Before you can claim the Charter’s protection, you must show that your rights were denied by government or some agency very closely connected to government, such as a school board or labour relations board. If a private individual, organization, or company denies 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, see 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 laws or other government action to defend a protected right or freedom. If you think a provincial or federal law or action denies your Charter rights, you can ask a court to rule that the law has no effect or to order the government to stop denying your rights. There are several steps involved.

           First: Was your Charter right denied?
You have to show the court that one of your Charter rights was denied. But, even if you do, Charter rights are not unlimited or absolute. They are balanced against the rights of others and the interests of the rest of society, as described above in the section on section 1 limits.

           Second: Can the government justify its denial of the Charter right?
If a court finds a government has denied your rights, then the court must decide if the government can justify infringing your rights. In other words, the court must decide whether denying a Charter right is reasonable and justified in a free and democratic society. To do that, the court looks at, among other things, whether the government has an important purpose in denying your right. This is all part of a court’s consideration under section 1.

More specifically, a court will ask if the government acted reasonably in achieving its purpose. If the court finds that the government’s purpose is important, the court must decide if the government is acting in a reasonable and justified way to achieve that purpose. The Supreme Court of Canada says this usually depends on the answers to three further questions:

1. Are the means chosen by the government to achieve its purpose reasonably connected to that purpose?
2. Was there some other way the government could have achieved the same purpose without violating anyone’s rights or freedoms, or violating them to a lesser degree?
3. Is the government’s purpose important enough and are the benefits of the law significant enough to justify violating a Charter right?

The more severe the violation of rights, the more difficult it is for government to show that it was justified in denying them. Only after the court considers all these things, can it finally decide if you deserve a remedy for the Charter violation. Charter cases can be complex and difficult to resolve because the courts often have to consider and balance many competing interests.

Remedies if Rights 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. 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. On the other hand, if parliament or a legislature took the action – for example, they passed a law that discriminates on the basis of sex – the court will give a remedy that helps everyone covered 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 isn't very helpful for someone who is charged with a crime after an illegal search or after they've confessed to a crime without being advised of their right to speak to a lawyer. So in these cases, a court can exclude 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.

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 refer to the Charter itself, as well as to script 200, called “Charter of Rights and Freedoms: Legal Rights” and script 232, called “Charter of Rights and Freedoms: Equality Rights.”

[updated April 2007]

Dial-A-Law© is a library of legal information that is available:

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