The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act, 1982 and forms part of the Constitution of Canada. It protects rights and freedoms against government action and is one of the central texts in Canadian constitutional law.
The Charter applies to Parliament, provincial legislatures, and federal, provincial, and territorial governments. It is not a general code for every private dispute, although Charter values can influence the development of Canadian law.
Background
The Charter came into force in 1982 as part of the patriation of Canada's Constitution. The Department of Justice Canada describes it as protecting rights and freedoms including freedom of expression and equality, and as forming part of Canada's highest law.
The Charter changed Canadian public law by giving courts a clearer constitutional text for reviewing government action and legislation. It did not remove democratic government, but it placed constitutional limits on how governments may act.
Rights Protected
The Charter protects several categories of rights:
- Fundamental freedoms, including conscience, religion, thought, belief, opinion, expression, peaceful assembly, and association.
- Democratic rights, including voting and eligibility for membership in federal or provincial legislatures.
- Mobility rights, including the right of citizens to enter, remain in, and leave Canada.
- Legal rights, including life, liberty, security of the person, protection from unreasonable search or seizure, protection from arbitrary detention, and fair criminal-process rights.
- Equality rights.
- Official-language rights.
- Minority-language educational rights.
The Charter also contains interpretive provisions and rules about application and remedies.
Section 1
Section 1 guarantees the rights and freedoms set out in the Charter, subject only to reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society.
This means that some infringements can be justified, but the government must meet a constitutional standard. Canadian courts commonly analyse whether the objective is pressing and substantial and whether the means are proportionate.
Fundamental Freedoms
Section 2 protects freedom of conscience and religion, freedom of thought, belief, opinion and expression, freedom of peaceful assembly, and freedom of association.
Freedom of expression includes freedom of the press and other media of communication. Justice Canada's Charterpedia explains that the protection is tied to values such as the search for truth, participation in social and political decision-making, and individual self-fulfilment.
Legal and Equality Rights
Section 7 protects life, liberty, and security of the person, and states that a person must not be deprived of those interests except in accordance with the principles of fundamental justice.
Section 15 protects equality before and under the law, and equal protection and benefit of the law without discrimination, including listed grounds such as race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
Application and Remedies
Section 32 defines the Charter's application to government. The Department of Justice notes that the Charter is essentially an instrument for checking government power over the individual.
Section 24 allows a person whose Charter rights or freedoms have been infringed or denied to apply to a court for a remedy the court considers appropriate and just in the circumstances. Section 52 of the Constitution Act, 1982 provides that law inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect.
Notwithstanding Clause
Section 33 is known as the notwithstanding clause. It allows Parliament or a provincial legislature to declare that an Act or provision operates notwithstanding certain Charter sections. Justice Canada explains that a section 33 declaration is valid for five years unless it is re-enacted.
The clause is politically controversial because it allows elected legislatures to override some rights protections for a time. It does not apply to every Charter right.
See Also
References
- Justice Laws Website: Constitution Acts 1867 to 1982
- Department of Justice Canada: Canadian Charter of Rights and Freedoms
- Department of Justice Canada: Section 2(b), freedom of expression
- Department of Justice Canada: Section 32(1), application of the Charter
- Department of Justice Canada: Section 33, notwithstanding clause
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