Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms, known as the Charter, is a far-reaching document contained in the Constitution Act, 1982. It guarantees all Canadians certain rights such as the rights to liberty and equality under the law. It also guarantees fundamental freedoms such as freedom of religion, freedom of expression, and freedom of association and peaceful assembly. These are guaranteed only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The Charter is the supreme law of the land. This means that it, normally, takes precedence over any federal or provincial law. That is, if any legislation, either provincial or federal, conflicts with the rights guaranteed in the Charter, it must be amended appropriately or it is likely to be struck down by the courts.

Last Reviewed: August 2015

Many legal analysts think that the most significant impact that the Charter has had on Canadian society has been in the area of Criminal Law. The Charter affects all areas of criminal law, from the investigation of a crime, procedural fairness at trial, and decisions about the use of evidence, right through to the sentencing of convicted individuals. The Charter can be used to strike down a criminal law passed by parliament if it violates one of the freedoms protected by the Charter and the government cannot justify the violation as the only reasonable way to meet an important need.

Last Reviewed: August 2015

Both the federal and provincial governments do retain a final power to declare that a law will continue to be in force despite the Charter. This is done under a section known as the “notwithstanding clause”: a clause which says that the Parliament or provincial legislatures can declare a law in force, because it is important to public policy, notwithstanding the guarantee of fundamental rights and freedoms in the Charter. This option is rarely exercised.

The Charter guarantees that Canadian citizens will not be subject to unreasonable searches and seizure or arbitrary detention or imprisonment. They also have the right to be informed of the reason for arrest or detention, and the right to obtain and instruct counsel without delay. If any of these rights are violated in the conduct of a criminal investigation, the evidence obtained can be excluded at trial if of the evidence would bring the administration of justice into disrepute.

Many thousands of cases have been heard in Canadian courts since 1982 to explore and set the limits to police behaviour in light of the Charter guarantees. For example, in the area of unreasonable search and seizure, the police must, in most cases, obtain a court order known as a warrant before conducting a search that might turn up evidence of a crime. The warrant is granted only if there are reasonable and probable grounds established under oath that an offence has been committed.

Last Reviewed: August 2015

Section 11 of the Charter sets out a number of specific guarantees for persons facing a criminal trial. These include the following:

• the right to be tried within a reasonable time;
• the right to not be a witness against themselves;
• the right to be presumed to be innocent until proven guilty according to law in a fair and public hearing by an independent and impartial court;
• the right not to be denied reasonable bail without just cause;
• the right to trial by jury where the maximum punishment is imprisonment for more than 5 years or a more severe punishment;
• the right, if acquitted of a charge, not to be tried for it again, and if convicted and punished, not to be tried and punished for it again;
• the right to be charged only in matters that constitute an offence under Canadian or international law, or in a criminal matter in accordance with general principles of law recognized by the community of nations.

Accused persons have the right to an interpreter at trial if they are deaf or do not understand or speak the language in which the trial is conducted.

Last Reviewed: August 2015

The Charter contains a guarantee against cruel or unusual treatment or punishment. Punishment has been struck down where it has been found to be excessive given the gravity of the crime, the personal history of the offender and the need to punish, deter, or rehabilitate the particular offender. On the other hand, the Supreme Court of Canada has held that life imprisonment with no eligibility of parole for 25 years is a severe but not unreasonable penalty for first degree murder.

Last Reviewed: August 2015

One of the most important protections that an accused person (and society in general) has in Canada is given by the Charter. This is the right to full disclosure by the Crown of all the evidence that the crown prosecutor has. The crown prosecutor has a special obligation within the Canadian justice system to see that the accused is treated fairly. The Supreme Court of Canada has said:

“The fruits of the investigation which are in the possession of the counsel for the crown are not the property of the crown for use in securing a conviction but the property of the public to be used to ensure that justice is done”.

Disclosure of all relevant evidence is necessary so that the accused can make a full answer and defence to the charges.

Last Reviewed: August 2015

Judges have an even stronger role to play in the Canadian justice system than they did before the Charter. There are three particularly important effects of the Charter on judges:

First, judges can declare that a law is of no force and effect if it conflicts with the freedoms guaranteed by the Charter. Parliament then must decide whether or not to redraft the law in such a way that the Charter is not breached.

Second, Canadian judges have control over many aspects of the conduct of criminal trials. For example, they can control the publicity surrounding a trial by ordering that evidence heard at bail hearings, preliminary inquiries, or when the jury is not present not be published until after the trial. This is known as a publication ban. An example: During the notorious Paul Bernardo trial, the judge imposed a partial publication ban that prohibited journalists and the public from viewing videotapes presented to the court. Judges may also move the location of a trial to a place where the publicity may be less. They may sequester juries or instruct them to disregard certain evidence. And judges may also exclude evidence from a trial if the evidence was obtained in a way that breaches Charter rights

Third, section 11(d) of the Charter guarantees a trial before an independent and impartial tribunal. In practical terms, this means that Canadian judges are secure in their jobs and cannot be removed from office except for causes that relate to their capacity to perform their jobs. In Canada, judges are not elected; they are appointed and serve until they resign, reach retirement age, or are removed for cause. Removal for cause is almost unheard of in Canada though recently there have been some investigations which have resulted in resignations.

Last Reviewed: August 2015

Try the Department of Justice Website or the Canadian Charter of Rights Decisions Digest on the Canadian Legal Information Institute’s website.

Last Reviewed: August 2015

There is a significant amount of information about the Charter on the Internet:

• The first source of information about the Charter is Department of Justice Website (search “charter”). An online version of the Charter is also available on this site.
• Canadian Heritage Website provides an Explanatory Guide that helps Canadians understand the role of the Charter in their day-to-day lives.
• For commentary on the Charter from a variety of sources, search the site (select keyword “Charter of Rights”).
• Equality Ebook – a collection of posts about section 15 of the Charter published by the University of Calgary, Faculty of Law (see link below)

Last Reviewed: August 2015