Canadian Charter of Rights and
Freedoms
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Supreme Court is guardian
Anyone can challenge gov’t in court if their
rights or freedoms have been infringed
(Section 24)
If Charter violated, maybe exclude
criminal evidence
Canadian Charter of Rights and
Freedoms
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When handing down a judgment, the court
(under s.52) has several options:
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Dismiss the appeal (uphold law)
Allow the appeal (law gone)
Read down (law generally Ok but not in this case)
Read in (law generally Ok, but needs “tweek” by
court)
Section 1 – Reasonable Limits
Clause – Oakes Test, SCC, 1986
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Two-part Test…
1. The limit deals with a pressing and
substantial social problem
2. The gov’t’s response to the problem is
reasonable and demonstrably justified
It enforces an important gov’t objective
 The limitation of individual rights or freedoms is
minimal
 The law is clear and sets precise standards
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Canadian Charter of Rights and
Freedoms
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The main rights and freedoms that form the
Charter fall into the following 7 categories:
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1.
2.
3.
4.
5.
6.
7.
Fundamental Freedoms (s.2)
Democratic Rights (ss. 3-5)
Mobility Rights (ss. 6)
Legal Rights (ss. 7-14)
Equality Rights (ss. 15)
Official Language Rights (ss. 16 – 22)
Minority Language Rights (ss. 23)
Section 2 – Fundamental
Freedoms
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Everyone has the following Fundamental
Freedoms are sometimes referred to as civil
liberties
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(a) freedom of conscience and religion
(b) freedom of thought, belief, opinion and
expression: press and media
(c) freedom of peaceful assembly
(d) freedom of association
Tradition and laws have reflected these
freedoms but now they are constitutionally
protected
Sections 3 – 5 Democratic Rights
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Section 3 – Every citizen of Canada has
the right to vote in an election and to run
for office
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Subject to restrictions on age, mental
capacity, residence and registration
No members of judiciary can vote
Sections 3 – 5 Democratic Rights
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Section 4 – Canadians are allowed to elect
a new government (federal and provincial)
every 5 years, except under circumstances
such as war or national emergencies
Section 5 – parliament and legislative
assemblies must sit at least once every 12
months
Section 6 – Mobility Rights
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Section 6 - all Canadians are free to come
and go as they please, including interprovincially, or leaving the country
Includes ability to look for work or set-up
business
Exception to free movement are criminal
and extradition laws and licensing/trade
qualification requirements
Can have waiting period for social
programs
Section 7 – Legal Rights
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Section 7 guarantees everyone “the right
to life, liberty and security of the person”
that will not be taken away except in
accordance with “the principles of
fundamental justice”
Section 8 – Legal Rights
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Section 8 protects citizens from
unreasonable search and seizure; that is,
the police cannot enter people’s homes
without a valid reason
http://www.theglobeandmail.com/news/national/quebec
/misbehaviour-by-police-cited-in-freeing-womancharged-with-murder/article2201113/
Controlled Drug and Substances Act gives
police right for warrantless search for
drugs if not principle residence
Sections 9 to 14 – Legal Rights
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Sections 9 to 11 include:
the right not to be arbitrarily detained or
imprisoned (s.9)
the right to a counsel (s.10) (but Singh)
the right to be tried within a reasonable
time and (s.11(b))
the right to be presumed innocent until
proven guilty (s.11(d))
s.12 – no cruel or unusual punishment
Section 13 – Right Against SelfIncrimination
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Witnesses who give evidence in court
cannot have their testimony used against
them in other proceedings
Exception: Perjury
Different than U.S. “Fifth amendment”
where someone can refuse to testify
Section 14 – Right to an
Interpreter
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Parties, accused or witnesses who are
deaf or do not understand or speak the
language being spoken in court have the
right to be assisted by an interpreter (any
language)
Section 15 – Equality Rights
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Everyone has the right to equal protection and
equal benefit of the law without discrimination
on the basis of race, national or ethnic origin,
colour, religion, sex, mental or physical
disability, or age
Equality rights can be restricted reasonably, ex.
You must be a certain age to drive, vote or sign
a contract
Language Rights – Sections 16-23
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Sections 16 to 22 of the Charter guarantee both
French and English as the two official languages
of Canada
Applies to government publications, debates,
other proceedings, dealing with Federal Offices
Section 23 protects right of English and French
minorities to have their children educated in their
language if the parent’s own primary education
was in that language
Section 25 - General
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Recognized the rights of Aboriginal peoples
(Indian, Metis , Inuit) in order to protect the
culture, customs, traditions and language of
Aboriginal peoples
Other rights in the Charter must not interfere
with the rights of Aboriginal peoples
Aboriginal peoples are entitled to special
benefits under treaties, other persons who do
not enjoy those benefits cannot argue that they
have been denied the right to be treated equally
under s. 15
Section 32 – Application of Charter
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Section 32(1) - Charter only applies to
gov’ts and not to private individuals,
businesses or other organizations
Section 32(2) – s.15 equality provisions
came into force three years after the rest
of the Charter to give the gov’ts a chance
to amend their laws to bring them into line
with the right to equality
Section 33 – Application of Charter
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Notwithstanding Clause
Balance the rights and freedoms of
Canadians with a government’s need to
create laws that are exempt from certain
sections of the Charter
Section 2 – fundamental freedoms
Section 7-14 – legal rights
Section 15 – equality rights