What is the Canadian Charter of Rights and Freedoms?

The Canadian Charter of Rights and Freedoms (or Charter for short) is a part of the Canadian Constitution. It became part of the Constitution in 1982.[1] The Charter lists the fundamental rights and freedoms that Canadians have decided are important and that must therefore be protected and guaranteed in Canadian society. Some of these include, for example, the right to a fair trial and the right to be free from unlawful search and seizure. Freedoms that Canadians can enjoy include freedom of expression and freedom of religion.

There are other laws in Canada that give people rights and freedoms. However, the Charter is the only one that is part of the Constitution, and that makes it special. First, since it is part of the supreme law of Canada, all laws and government actions must comply with the Charter. In other words, the Charter always comes first. For example, if the government passes a law or behaves in a way that interferes with a person’s right to a fair trial, a court can strike that law down. Second, the Charter can only be changed by using the amending formula, which is the formula in the Constitution that describes how changes to the Constitution are to be made. Making a change using the amending formula is very difficult; there has never been a formal amendment made to the Charter.

Those special features make the rights and freedoms in the Charter very important and fundamental in Canada. There are seven groups of rights and freedoms:

1) Fundamental Freedoms: including the freedoms of religionconscienceexpression, and peaceful assembly;

2) Democratic Rights: such as the right to vote;

3) Mobility Rights,

4) Legal Rights,

5) Equality Rights,

6) Language Rights, and

7) Minority Language Education Rights.

The full text of the Canadian Charter of Rights and Freedoms can be found here.

How are Charter rights protected?

Although the Charter protects the rights and freedoms of people in Canada, the Charter only protects those rights and freedoms from the governments in Canada. Some rights also only apply to Canadian citizens while other rights can apply to anyone in Canada.

Most of the Charter rights are “negative” rights. This means that these rights are violated whenever the government takes action that interferes with them. For example, freedom of religion is protected by the government leaving people to practice religion in their own way. It is violated when the government does something that threatens their practice of religion. Negative rights restrain and limit what the government can do.

Some of the Charter rights are “positive”. This means that these rights are violated when the government does not take the action they are supposed to. For example, minority language education rights require the government to provide French language schools in areas where there are enough people who speak French.[2] Those rights are violated when the government does not provide those schools. Positive rights give the government extra responsibilities.

The courts in Canada are the guardians of the Charter. When someone believes that a Charter right is violated, he or she can go to court where the judge will decide what to do. The judge first needs to decide whether the right was actually violated. If the right was violated, the Court can order the government to take an action that is appropriate and just. This action can include giving the person money, ordering the government to do something differently, or even changing the law.

How are Charter rights limited?

No right is absolute in Canada. For example, the freedom of expression in Section 2 of the Charter does not let a person publish hate speech.[3] The people who wrote the Charter wanted to make sure that there would be a balance between an individual’s rights and the greater good of society. They made sure that there are some limits on Charter rights.

First, Charter rights do not cover everything. The right to equal benefit of the law in Section 15 does not mean that everyone must be treated completely equally.[4] If this were the case, the government might have to pay everyone Old Age Security no matter his or her age. To avoid this, the Courts developed guidelines that explain when a Charter right is actually violated.

Second, even if a Charter right is violated, the government may be allowed to do so in certain circumstances. Section 1 of the Charter says that all of the Charter rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[5]The Courts developed a test, called the Oakes test, which the government must pass in order to justify violating a particular right. If the government passes this test, the violation of the right is justified and allowed.

The other way rights can be limited is by the government using the “notwithstanding” clause in the Charter. Section 33 of the Charter allows either a provincial or the federal government to declare that a law it makes does not have to comply with certain Charter rights.[6] This has been done very rarely by governments. If it is used, this exemption lasts only for five years, and then must be voted on again to continue.

 

[1]Canadian Charter of Rights and Freedoms, Part I of the Constitution Act1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] <http://laws-lois.justice.gc.ca/eng/Const/page-15.html>

[2]Canadian Chartersupra note 1, s 23.

[3]Canadian Chartersupra note 1, s 2.

[4]Canadian Charter, supra note 1, s 15.

[5]Canadian Charter, supra note 1, s 1.

[6]Canadian Charter, supra note 1, s 33.

 

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448D Law Centre
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