Canadian Charter of Rights and Freedoms - Features

Features

Under the Charter, people physically present in Canada have numerous civil and political rights. Most of the rights can be exercised by any legal person, (the Charter does not define the corporation as a "legal person"), but a few of the rights belong exclusively to natural persons, or (as in sections 3 and 6) only to citizens of Canada. The rights are enforceable by the courts through section 24 of the Charter, which allows courts discretion to award remedies to those whose rights have been denied. This section also allows courts to exclude evidence in trials if the evidence was acquired in a way that conflicts with the Charter and might damage the reputation of the justice system. Section 32 confirms that the Charter is binding on the federal government, the territories under its authority, and the provincial governments. The rights and freedoms enshrined in the Charter include:

Fundamental freedoms (section 2), namely freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association.

Democratic rights: generally, the right to participate in political activities and the right to a democratic form of government:

Section 3: the right to vote and to be eligible to serve as member of a legislature.

Section 4: the maximum duration of legislatures is set at five years.

Section 5: an annual sitting of legislatures is required as a minimum.

Mobility rights: (section 6): the right to enter and leave Canada, and to move to and take up residence in any province, or to reside outside Canada.

Legal rights: rights of people in dealing with the justice system and law enforcement, namely:

Section 7: right to life, liberty, and security of the person.

Section 8: freedom from unreasonable search and seizure.

Section 9: freedom from arbitrary detention or imprisonment.

Section 10: right to legal counsel and the guarantee of habeas corpus.

Section 11: rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.

Section 12: right not to be subject to cruel and unusual punishment.

Section 13: rights against self-incrimination

Section 14: rights to an interpreter in a court proceeding.

Equality rights: (section 15): equal treatment before and under the law, and equal protection and benefit of the law without discrimination.

Language rights: generally, the right to use either the English or French language in communications with Canada's federal government and certain provincial governments. Specifically, the language laws enshrined in the Charter include:

Section 16: English and French are the official languages of Canada and New Brunswick.

Section 16.1: the English and French-speaking communities of New Brunswick have equal rights to educational and cultural institutions.

Section 17: the right to use either official language in Parliament or the New Brunswick legislature.

Section 18: the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.

Section 19: both official languages may be used in federal and New Brunswick courts.

Section 20: the right to communicate with and be served by the federal and New Brunswick governments in either official language.

Section 21: other constitutional language rights outside the Charter regarding English and French are sustained.

Section 22: existing rights to use languages besides English and French are not affected by the fact that only English and French have language rights in the Charter. (Hence, if there are any rights to use Aboriginal languages anywhere they would continue to exist, though they would have no direct protection under the Charter.)

Minority language education rights: (Section 23): rights for certain citizens belonging to French or English-speaking minority communities to be educated in their own language.

All of these rights are subject to the limitations clause (section 1) and some of these rights are subject to the notwithstanding clause (section 33). The limitations clause in section 1 allows governments to justify certain infringements of Charter rights. Every case in which a court discovers a violation of the Charter would therefore require a section 1 analysis to determine if the law can still be upheld. Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, and if the infringement can be "demonstrably justified." Section 1 has thus been used to uphold laws against objectionable conduct such as hate speech (e.g., in R. v. Keegstra) and obscenity (e.g., in R. v. Butler). Section 1 also confirms that the rights listed in the Charter are guaranteed.

The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, and some have speculated that its use would be politically costly. In the past, the notwithstanding clause was invoked routinely by the province of Quebec (which did not support the enactment of the Charter but is subject to it nonetheless). The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to end a strike and to protect an exclusively heterosexual definition of marriage, respectively. (Note that Alberta's use of the notwithstanding clause is of no force or effect, since the definition of marriage is federal not provincial jurisdiction.) The territory of Yukon also passed legislation once that invoked the notwithstanding clause, but the legislation was never proclaimed in force.

Other sections help clarify how the Charter works in practice. These include,

Section 25, which states that the Charter does not derogate existing Aboriginal rights and freedoms. Aboriginal rights, including treaty rights, receive more direct constitutional protection under section 35 of the Constitution Act, 1982.

Section 26, which clarifies that other rights and freedoms in Canada are not invalidated by the Charter.

Section 27, which requires the Charter to be interpreted in a multicultural context.

Section 28, which states all Charter rights are guaranteed equally to men and women.

Section 29, which confirms the rights of religious schools are preserved.

Section 30, which clarifies the applicability of the Charter in the territories.

Section 31, which confirms that the Charter does not extend the powers of legislatures.

Finally, section 34 states that the first 34 sections of the Constitution Act, 1982 may be collectively referred to as the "Canadian Charter of Rights and Freedoms".