Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms, often called the Charter, is part of the Constitution Act, 1982. It is foundational to Canada’s democracy.

The Charter governs a government’s relationship with its people. For example, how a provincial government makes laws for its residents, or how the federal government makes laws for all Canadians. It does not apply to issues between private individuals or between businesses and individuals.

It guarantees certain rights and freedoms, including:

• Fundamental freedoms, including of conscience and religion, thought and expression, peaceful assembly and association
• Democratic rights, including the right to vote
• Mobility rights, including the right to move between provinces and make a living in any province
• Legal rights, including life, liberty and security of person, and the right to be presumed innocent until proven guilty
• Equality rights, including the right to equal protection and equal benefit of the law without discrimination
• Recognition of French and English as official languages
• Minority language education rights

However, Charter rights and freedoms are not absolute. There may be times when a government has a good reason for creating a law that violates (goes against) the Charter. For example, to protect the interests of the community as a whole or to protect competing rights. Section 1 of the Charter says Charter rights can be reasonably and justifiably limited. The courts decide whether the government is reasonable and justified in passing the law.

Last Reviewed: June 2023

Your Charter rights are engaged in your dealings with a government. For example, if you are accused of a crime, the Charter guarantees how the Crown will treat you during the prosecution process.

Your Charter rights are not engaged in issues between private individuals or between businesses and individuals. For example, the Charter does not apply if your boss searches your desk at work.

Last Reviewed: June 2023

It depends how your Charter rights were breached.

If you are the accused in a criminal issue, you may raise the breach of your Charter rights during the prosecution process.

If a law applies to you but violates your Charter rights, you can ask the court to review the law.

There are other ways your Charter rights may be engaged and violated. Charter claims are complicated. It is a good idea to get legal help with these claims.

Last Reviewed: June 2023

Governments in Canada (both the federal government and provincial/territorial governments) pass laws about many things. Sometimes someone challenges a law in court saying it goes against their Charter rights. The court interprets the Charter and decides if the law infringes on a person’s rights under the Charter.

If the court finds the law goes against the Charter, we say the law is unconstitutional. Usually the government will change the law so it aligns with the Charter.

However, the government who passed the law can also say the law continues in effect despite it going against the Charter. That is because section 33 of the Charter allows a government to declare a law in force because it is important to public policy, notwithstanding the guarantee of fundamental rights and freedoms in the Charter. Governments rarely exercise this power.

Last Reviewed: June 2023

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

1. Judges can declare a law is unconstitutional (invalid) if it goes against the Charter. The government that passed the law must then decide whether to change the law so it does not breach (go against) the Charter.
2. Judges have control over many parts of criminal trials. For example, they can order that evidence heard at bail hearings, preliminary inquiries, or when the jury is not present not be publicly published until after the trial. This is a publication ban. For example, during the trial for Paul Bernardo, 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 gathered in a way that breaches Charter rights.
3. Judges are independent and impartial. They are not elected, like some judges are in the United States. They are appointed by the government to serve until they resign, reach the retirement age, or the government removes them for a reason related to their ability to perform their job.

Last Reviewed: June 2023

Section 15 of the Charter says every individual is equal before and under the law. Every individual has the right to equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

The Charter also recognizes that some individuals or groups are or have been disadvantaged because of a characteristic they share. For example, women, Indigenous persons, members of the LGBTQ2+ community, persons with disabilities, etc. Any laws, programs or activities that aim to improve the conditions of a disadvantaged group or individuals is not discrimination.

Last Reviewed: June 2023

The Charter applies when a government deals with its people.

Human rights laws apply between individuals and businesses in certain areas. For example, the Alberta Human Rights Law deals with issues:

• at work (including job advertisements and interviews, terms and conditions of employment, and termination of employment)
• with housing (renting and condominiums)
• when accessing goods and services usually available to the public, (such as hotels, swimming pools, retail stores, and more)
• about public statements and notices that discriminate or promote hatred of individuals or groups

Each province and territory has human rights legislation that applies in its province. The Canadian Human Rights Act applies in federally-regulated spaces, such as banks, interprovincial transportation, the postal service, telecommunications, and more. Human rights laws across the country are very similar.

Last Reviewed: June 2023

The freedom of religion guarantees that every person in Canada can freely hold and show religious beliefs. This means being able to attend a place of worship, perform religious practices, and talk freely about religious beliefs.

The courts interpret “religion” as involving:

• a system of faith and worship
• belief in a divine or higher power
• personal conviction that fosters a connection with the divine or higher power

This freedom also protects a person’s right to religious non-belief and to refuse to participate in religious practice. Finally, the freedom protects a person from being forced into a religious belief.

However, a person’s freedom of religion can be limited where it interferes with rights of another.

Learn more from Charterpedia on the Government of Canada’s website.

Last Reviewed: June 2023

The freedom of expression guarantees that every person in Canada can speak freely without censorship. This freedom is especially relevant to the political process, as it allows Canadians to speak out against the government.

This freedom also includes freedom of the press and other media. It protects the “open court principle” which favours courts being open to the public and the media.

Learn more from Charterpedia on the Government of Canada’s website.

Last Reviewed: June 2023

The freedom of peaceful assembly guarantees that every person in Canada can gather freely together in person. For example, to strike or to protest. Note though this freedom protects only peaceful assembly. It does not protect blockades of lawful activities.

Learn more from Charterpedia on the Government of Canada’s website.

Last Reviewed: June 2023

The freedom of association guarantees that every person in Canada can join with others and form associations. For example, this freedom allows employees to form a union. Note this right protects the meeting or forming of associations, not the activities of the association.

Learn more from Charterpedia on the Government of Canada’s website.

Last Reviewed: June 2023

Section 3 of the Charter says every Canadian citizen has a right to vote in elections for provincial governments and the federal government. Note this right does not extend to those with permanent residency, refugee status, and others who are not yet Canadian citizens.

Last Reviewed: June 2023

Section 4 of the Charter says the House of Commons or a provincial/territorial legislature can only sit for a maximum of 5 years between elections. This prevents against a government from being elected and then refusing to call another election for many years.

If there is a war, invasion or insurrection, then the House of Commons or a provincial/territorial legislature can continue for more than 5 years if at least one-third of the members of the elected body agree. This has never happened since the Charter came into effect.

Section 5 of the Charter says Parliament or a provincial/territorial legislature must sit at least once every 12 months. This prevents a government from being elected and then never or rarely meeting to pass laws.

Last Reviewed: June 2023

The Charter affects all areas of criminal law, including investigating a crime, trial procedures, evidence, and sentencing those convicted of crimes.

For example, you may have heard how a person is innocent until proven guilty. This is from section 11(d) of the Charter! The Charter also says a person has a right to be tried within a reasonable time. In the Jordan case, the Supreme Court of Canada said this right means an accused must learn of their fate within 18 months in a provincial court or within 30 months in a superior court (such as Alberta’s Court of King’s Bench). Delays caused or waived by the defence do not count towards these time limits.

The courts can also use the Charter to strike down a criminal law if the law violates one of the freedoms the Charter protects and if the government cannot justify the violation as the only reasonable way to meet an important need.

Last Reviewed: June 2023

The Charter guarantees people in Canada cannot face unreasonable searches and seizure of person or property, or be arbitrarily detained or jailed. They also have the right to be informed of the reason for arrest or detention, and the right to talk with a lawyer without delay. If the police or other agents violate these rights during a criminal investigation, the trial judge may exclude the evidence gathered this way.

Canadian courts have heard many thousands of cases since the Charter came into force in 1982. Over the years, the courts have interpreted the Charter and limited police actions to uphold the Charter guarantees. For example, to prevent against unreasonable search and seizure, most times the police must get a court order called a warrant before conducting a search that might turn up evidence of a crime. A court will only grant a warrant if the police show under oath there are reasonable and probable grounds of an offence having been committed.

Last Reviewed: June 2023

Section 11 of the Charter sets out 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 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 a jail term of more than 5 years or a more severe punishment
• if acquitted of a charge, the right not to be tried for it again
• if convicted and punished, the right not to be tried and punished for it again
• the right to be charged only for offences under Canadian or international law or for criminal matters according to 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 spoken at trial.

Last Reviewed: June 2023

The Charter guarantees against cruel or unusual treatment or punishment. The courts have struck down punishments ordered by other courts if the punishment is excessive given the seriousness of the crime, the offender’s history, and the need to punish, deter, or rehabilitate the offender. On the other hand, the Supreme Court of Canada has said that life in jail without being eligible for parole for 25 years is a severe but not unreasonable punishment for those convicted of first degree murder.

Last Reviewed: June 2023

The Charter gives an accused person an important protection: the right to full disclosure by the Crown of all the evidence they have. This means the Crown must share all its evidence against the accused so the accused can prepare a complete defence to the charges against them. The Crown cannot keep evidence and only share it at trial. In this, Crown prosecutors have a special obligation to make sure the justice system treats the accused fairly.

Last Reviewed: June 2023

Yes. The Charter says every Canadian citizen has the right to enter, remain in, and leave Canada. Note this right only applies to Canadian citizens. Those with permanent residency, refugee status and other statuses may not be able to freely leave and re-enter Canada.

Last Reviewed: June 2023

Yes. The Charter says every Canadian citizen and permanent resident has the right to move to, live in and work in any province or territory.

That being said, each province can have laws about who is a resident of that province for the purpose of providing social services.

Last Reviewed: June 2023