Royal Canadian Mounted Police officers stand guard over the Canadian Constitution. REUTERS/Jim Young
The Charter of Rights and Freedoms is a powerful part of the Constitution that spells out the rights and freedoms essential to a democratic Canada. Here’s a rundown of the more significant parts.
Section 1: Guarantee of Rights and Freedoms
This section outlines the purpose of the Charter and the rights it enshrines and protects. However, although this section is called a “guarantee of rights and freedoms,” it also says those rights can be limited and are not absolute.
Specifically, the section guarantees those rights within “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
This allows the courts to strike a balance when one party’s rights could conflict with another’s, or when those rights might run contrary to social or national interest.
For example, pornography and hate speech could be considered a form of expression, but that expression could be limited if it poses a threat to others.
Section 2: Fundamental Freedoms
This section guarantees the following freedoms:
- Freedom of conscience and religion;
- Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
- Freedom of peaceful assembly (including membership in a trade union); and
- Freedom of association.
Despite that “guarantee,” Canada’s courts can sometimes limit those freedoms in accordance with s. 1.
Sections 3-5: Democratic Rights
Section 3 allows all Canadian citizens to take an active role in electing their governments. It includes voting in federal, provincial, and territorial elections and also the right to run for office themselves
Section 4 establishes a maximum five-year term for federal and provincial legislative assemblies. It allows one exception: in time of war or rebellion, a government can continue beyond the five-year period if two-thirds of the assembly support that extension.
Section 5 establishes how often legislative assemblies must meet. It requires a sitting “at least once” every 12 months. This is meant to ensure that members can raise questions and hold the ruling government to account.
Sections 7-14: Legal rights
These sections protect your rights when involved in the legal system.
Section 7 establishes your right to “life, liberty, and security of the person.”
Section 8 protects you from unreasonable search and seizure. It ensures your right to privacy. It prevents police from entering your home or searching you unless they have good reason.
Section 9 is the right to not be arbitrarily detained or arrested. In other words, police can’t take you into custody without a good reason.
Section 10 sets out the rights for anyone who’s been arrested or detained. They are:
- To be informed promptly of the reason for their arrest or detention;
- To retain a lawyer and to be informed of that right;
- Habeas corpus. This is a legal term meaning you must be promptly taken before a court that will determine if you have been legally detained. If not, you must be released.
Sections 11 through 14 detail the rights of someone charged with an offence, including their rights in court and in custody. Those rights include:
- Being tried within a reasonable time;
- To be presumed innocent until proven guilty;
- Not to be denied reasonable bail;
- Not be subjected to cruel and unusual punishment;
- Not to be compelled to provide self-incriminating evidence; and
- The right to a translator or interpreter.
Section 15: Equality
This section states clearly that every person is equal before the law and is entitled to the same legal rights and protections, regardless of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
Court decisions have also established sexual orientation as another ground on which someone cannot be discriminated against under the law.
Exceptions to s. 15 exist for laws and programs designed to help some disadvantaged groups. For example, a programs to improve employment opportunities for minorities or persons with disabilities are permitted in s. 15.
Section 24: Enforcement
This section provides solutions for when someone’s Charter rights are violated.
Firstly, it says any such person can apply to a court and seek “such remedy as the court considers appropriate and just in the circumstances.”
The second solution pertains to legal proceedings where the police or similar agency violates someone’s rights. For example, if they obtained evidence through an unlawful search, a court could disallow that evidence.
Finally, the Charter allows courts to strike down a law that violates it.
Section 33: The Notwithstanding Clause
Section 33, generally known as the notwithstanding clause, allows the federal or provincial governments to enact legislation that overrides some Charter rights, such as freedom of expression and freedom of assembly.
In one example, Alberta used the clause in its 2000 Marriage Amendment Act, which defined marriage exclusively as between a man and a woman. It inserted the clause in order to insulate the law from legal challenges. However, a later Supreme Court of Canada decision ruled the province didn’t have the authority to define the term in the first place.
The notwithstanding clause can’t override certain rights, such as mobility and equality. A clause declaration expires after five years but can be renewed indefinitely.
The Charter of Rights and Freedoms also enshrines many other important rights, such as mobility and minority language educational rights. You can read more about the charter on the government of Canada websites.
Canadian Charter of Rights and Freedoms
How your rights are protected