The Canadian Charter of Rights and Freedoms Outline

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Guarantee

Fundamental Freedoms

Democratic Rights

Mobility Rights

 Legal Rights

Equality Rights

Official Languages

Enforcement

General

Notwithstanding Clause

S. 1: Guarantee of Rights and Freedoms

• Says: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
• This means that you can enjoy the Rights and Freedoms set out by the Charter as long as they are for the greater good of society. It is a balance between citizen’s rights and freedoms and the good of society as a whole (AKA common sense)

S. 2: Fundamental Freedoms

• Everyone has the following fundamental freedoms:

1. freedom of conscience and religion;
2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
3. freedom of peaceful assembly; and
4. freedom of association.
   

•  These freedoms are set out in the Charter to ensure that Canadians are free to create and express their ideas, gather to discuss them and communicate them widely to other people. 
• They are also important to the success of a democratic society like Canada. In a democracy, people must be free to discuss matters of public policy, criticize governments and offer their own solutions to social problems.
• Even though these freedoms are very important, governments can sometimes limit them. 
• For example, freedom of expression may be limited by laws against hate propaganda or child pornography because they prevent harm to individuals and groups. (source)
  

S. 3-5: Democratic Rights 

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

• Involves the right for adult citizens to vote and run for political office

• Is the right to vote also a responsibility?
• What can happen if you do not exercise your right to vote?

4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

Continuation in special circumstances

• (2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

• Governments have to hold an election at least every 5 years
• In time of real or apprehended war, this time can be extended if ⅔ of the House of Commons votes in favour

5. There shall be a sitting of Parliament and of each legislature at least once every twelve months. 

• The House of Commons, Senate, and each provincial legislature must meet at least once every twelve months
• Why do you think it is important for governments to have elections at least every 5 years?
• What is the benefit of keeping the government the same when the country is at war?
• Do you think once a year is enough for the government to meet? Why or why not?

Section 6: Mobility Rights

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Rights to move and gain livelihood

• (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:

1. to move to and take up residence in any province; and
2. to pursue the gaining of a livelihood in any province.

Limitation

• (3) The rights specified in subsection (2) are subject to:

1. any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
2. any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

Affirmative Action Program

• (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

• Every citizen of Canada has the right to enter, remain in and leave Canada.
• A province cannot prevent a Canadian from entering it except in temporary circumstances, for some local reason as, for example, health.
• Allows for goods to be freely moved from province to province.
• Extradition laws place some limits on these rights; these laws state that persons in Canada who face criminal charges or punishment in another country may be ordered to return to that country. 
• Subsection 6(3) makes clear that provinces and territories may decide to only give social benefits (e.g. welfare, health insurance) to those who have lived in the province or territory for a certain period of time. 
• They may also pass employment laws that require workers to have the necessary qualifications to practice their profession or trade.
• Subsection 6(4) allows a province or territory that has an employment rate below the national average to create programs that favour its own residents.
• The rights to enter and exit Canada freely are only held by Canadian citizens
• Citizens and permanent residents have the right to move within its boundaries and to pursue employment in another province
• What is the difference between a permanent resident and a Canadian citizen?
• Permanent resident is a person who has been granted landing but has not become a Canadian citizen
• A person can be a citizen one of two ways:
• Canadian citizen by birth
• Canadian citizen by naturalization – immigrants to Canada who acquired Canadian citizenship through the citizenship application process. The Charter begins with the Guarantee of Rights and Freedoms
  

• Aims to protect Canadian unity
• Eg: French Canadians are able to travel throughout all Canada and receive government and educational services in their own language, and don’t have to stay in Quebec
• Was there any time in Canada where this right did not extend to everyone? Who was excluded? (Japanese, Jewish WWII)
  

S. 7-14 Legal Rights 

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

• Life – the moral principle that a human has the right to live and particular should not be killed by another human being.
•  Arises in debates on issues of capital punishment, war, abortion, euthanasia, justifiable homicide
  

• Liberty – freedom for individuals to act without physical restraint and the power to make important personal choices
• Is an individual right only, not a family or a group right
• i.e. two parents attempted to block a certain treatment for their child on religious grounds, it was argued that the personal choice aspect of liberty guaranteed family privacy, but the Charter states that rights are between the individual and the government and not between an individual and a member of their family. The child was protected under the Charter and was able to receive treatment (for the greater good).
  

• Security - to be free from all forms of violence (torture, cruel & unusual punishment), to make decisions concerning reproduction, the decisions regarding the treatment of your body when you are unable to communicate them (i.e. living will), not to be subjected to medical or scientific experiments without informed consent.

8. Everyone has the right to be secure against unreasonable search or seizure

• A reasonable expectation of privacy
• Police and other government agents cannot, without sufficient reason, invade the personal privacy of individuals.
• What constitutes a 'reasonable' search depends on the surrounding circumstances.
• What would be a “reasonable” circumstance for a search?
• What do police require before searching someone or their property?
• Searches in schools are a means of maintaining rules and safety. The objective of school searches can range from discovering a violation of classroom rules, such as no eating during lessons, to searches intended to discover the commission of crime, such as possession of drugs or weapons.
  Examples:
• Looking into a student's mouth for gum
• Asking a student to hand over the day's projectile of choice
• Emptying a student's school bag.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

• Everyone has the right not to be detained or imprisoned without a valid reason. 
• What might be a reason the authorities would want to delay or hold up a person?
  

10. Everyone has the right on arrest or detention:

1. to be informed promptly of the reasons therefor;
2. to retain and instruct counsel without delay and to be informed of that right; and
3. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

• Everyone has the right on arrest or detention to be told why, given the option to call a lawyer and to be released if a judge finds there is no reason why you should be held further.

11. Any person charged with an offence has the right:

1. to be informed without unreasonable delay of the specific offence;
2. to be tried within a reasonable time;
3. not to be compelled to be a witness in proceedings against that person in respect of the offence;
4. to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
5. not to be denied reasonable bail without just cause;
6. except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
7. not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
8. if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
9. if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

• If you are arrested and charged, you have the right to: 
• be informed without unreasonable delay of the specific offence, 
• to be tried within a reasonable time, 
• to avoid self-incrimination, 
• to be presumed innocent until proven guilty, 
• not to be denied reasonable bail without just cause, 
• right to a jury of your peers, 
• not be charged with something that at the time was not criminal, 
• not to be tried again for the same offence, and
• to be given the lesser punishment if the punishment for the offence has changed after being found guilty.
• Persons accused of a crime cannot be forced to testify at their own trials (section 11 c).
• In a situation where a person commits an offence and, before he or she is sentenced, a new law changes the fine or term of imprisonment that applies, that person must be sentenced under whichever law is the more lenient (source)
  

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

• This includes torture, excessive or abusive use of force by law enforcement officials. Also, sentences of imprisonment must match the seriousness of the crime committed. For example, an extremely long prison sentence is not appropriate for a very minor crime. (source)

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

• In other words, if the testimony of a witness shows that he or she has committed a crime, that evidence cannot be used by the prosecution to prove that the witness committed an offence. The exception is where a witness commits the crime of perjury which is the offence of lying to the court. (source)

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. 

• The right in a trial to an interpreter for both those charged and witnesses who do not understand or speak the language or who are deaf. 
• This right applies regardless of which language is involved.
  

S. 15: Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

• (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

• The courts have held that section 15 also protects equality on the basis of other characteristics that are not specifically set out in it. For example, this section has been held to prohibit discrimination on the grounds of sexual orientation, marital status or citizenship. (source)
  
• The Supreme Court of Canada has stated that the purpose of section 15 is to protect those groups who suffer social, political and legal disadvantage in society. (source)
• Discrimination occurs when a person, because of a personal characteristic, suffers disadvantages or is denied opportunities available to other members of society.
  
• Provinces and territories also have anti-discrimination laws which, like the Charter, protect against discrimination. Unlike the Charter, however, which only applies to government actions, these provincial laws apply to all facilities or services that are available to the public.
• However, any law, program or activity that serves to compensate for past actions towards disadvantaged individuals or groups additional to these rights (i.e. greater funding / training / education for those who were denied it in the past)
• Everyone can set a good example by creating a community free of discrimination. What are some examples?
• Discouraging the use of inappropriate and discriminatory language
• Taking steps to eliminate bullying (both in-person and online)
• Listening to the concerns of others who feel discriminated against
• Learning about equality and dignity, and the laws protecting it.

S. 16-22: Official Languages

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada.

Official languages of New Brunswick

• (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

Advancement of status and use

• (3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.

18. (1) The statutes, records and journal of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

 

19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

• Citizens can obtain all federal documentation and services in both English and French
• New Brunswick is the only province that is officially bilingual
• Quebec is the only province where English is not an official language
• Parliament proceedings may be carried out in either official language and all records must be published in both English and French
• Any Parliament court proceedings (e.g. Supreme Court of Canada) may be in either official language
  
• The Charter does not oblige any member of the public to become bilingual.

 21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

• The purpose of section 21 is to protect language rights that already exist in other parts of the Constitution. (source)
• For example, section 133 of the Constitution Act, 1867 gives the people of Quebec the right to use either English or French in the Quebec legislature and before any of the courts of that province. It also provides the right to have the provincial laws printed and published in both English and French. 
• The Manitoba Act, 1870 (confirmed in the Constitution Act, 1871) confirms the same rights for the people of Manitoba.

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

• Section 22 guarantees that the rights in respect of the use of English and French as set out in the Charter do not remove or reduce any right to use other languages that might be granted by other Acts or by custom. (source)

23. (1) Citizens of Canada:

1. whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside; or
2. who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.

Continuity of language instruction

• (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

Application where numbers warrant

• (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province:

1. applies whenever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and
2. includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

• Citizens of Canada who speak either English or French or who have received their primary school instruction in Canada in English or French have the right to have their children receive primary and secondary school instruction in that language in that province. i.e. French immersion 
• This guards against minorities being assimilated if their educational rights are denied for a long period of time.
• In 1986, 152,225 French Canadian students were going to French-language schools in accordance with section 23, in 2001 the number was 149,042.

S. 24: Enforcement

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

•  The Charter will be enforced by the courts
• Anyone who believes his or her rights or freedoms under the Charter have been violated by any level of government can go to court to ask for a remedy:
  
• That person must show which Charter right or freedom has been violated. 
• If a limit to the right or freedom is set out in the law, the government will have an opportunity to show that the limit is reasonable under section 1 of the Charter. 
• If the court is not convinced by the government’s argument, then it can grant a remedy that is just and appropriate in the circumstances. 
• In criminal cases, a court may make an order to stop a trial if they decide that the person has been denied the right to a fair trial within a reasonable time. 
• If a government official improperly searches for evidence on private property (section 8), a court may order that the evidence not be used against the person in trial if it is clear that using the evidence would diminish public confidence in law enforcement and the justice system.
• A court may also make an order that a law that violates a person’s Charter rights is not valid. This power comes from section 52 of the Constitution Act, 1982. (source)
  

S. 25-31: General

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:

1. any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
2. any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

• Indigenous rights and freedoms are not affected by Charter
• Allowed own form of government
• Taxations
• Status Indians do not have to pay property tax if they are living on a reserve.
• Status Indians do not have to pay income tax if the work was done on reserve property.
• Hunting / fishing is allowed year round due to treaties signed before the Charter was repatriated.
• Where Indigenous 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 section 15 of the Charter.
• Existing Aboriginal and treaty rights of the Indigenous Peoples of Canada are recognized and affirmed. 
• The Supreme Court of Canada has ruled that section 35 means that Indigenous rights under treaties or other laws are now protected under the Constitution Act, 1982. (source)
  

26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

• The guarantee in this Charter of certain rights and freedoms doesn’t mean any other rights or freedoms existing in Canada are excluded.
• Just because a right is not in the Charter doesn’t mean it cannot apply
• Refugees cannot be denied refugee status if they fall under the UN guidelines (1951 Refugee Convention)

 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

• Canada is home to many cultural groups and seeks to maintain and promote multiculturalism.
• Includes dress codes (burqua /turban / kirpan [ceremonial knife])

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

• Rights respecting certain schools
• Nothing in this Charter changes any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational schools.
• Privileges cannot be challenged on Charter grounds

30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be

 

31. Nothing in this Charter extends the legislative powers of any body or authority.

• The Charter in no way affects the sharing of responsibilities or the distribution of powers between the provinces and the territories, and the federal government. 
• The powers of the provincial and federal governments are set out in the Constitution Act, 1867. 
  

32. (1) This Charter applies:

1. to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
2. to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

• The purpose of section 32 is to make it clear that the Charter only applies to governments, and not to private individuals, businesses or other organizations.
  

Section 33: Notwithstanding Clause:

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Operation of exception

• (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Five year limitation

• (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

Re-enactment

• (4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).

Five year limitation

• (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

• Any federal or provincial parliament may declare that one of its laws applies temporarily ("notwithstanding") even though it contradicts a section of the Charter. This overrides the Charter protections for a limited period of time.
• This is done by including a section in the law clearly specifying which rights have been overridden.
• The rights to be overridden, however, must be either a fundamental freedom, a legal right, or an equality right
• Other rights such as mobility rights, democratic rights, and language rights are excluded.
  

• The Notwithstanding Clause lapses after five years or less. The rationale behind having a five-year expiry date is that it is also the maximum amount of time that the Parliament or legislature may sit before an election must be called.
• Legislature may re-enact the clause indefinitely.