Law & Behold...your guide to Canadian Law

Today's Trivia
There is an urban legend that the singer formerly known as Prince in England changed his name to avoid paying certain debts. This scheme wouldn't work in Canada, although theoretically you can change your name to a symbol or mark. The risk is that someone can use your mark and in effect forge your signature. It's not recommended.

The Canadian Charter of Rights and Freedoms

April 17, 1982 is a noteworthy date in Canadian history. It was on this day that the rights and freedoms of Canadians were enshrined in the Canadian Charter of Rights and Freedoms, an integral part of our country's constitution.

What is the Charter?

The enactment of the Charter was an important Canadian milestone in the protection of human rights. The values and principles embodied in the Charter are essential to the promotion of a free and democratic society.

The Charter protects Canadians' rights and freedoms by limiting the ability of governments to pass laws or take actions that discriminate or infringe on human rights. This means that all individuals must be treated equally, regardless of their race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The Charter also protects Canada's linguistic duality and multicultural character.

A Closer Look at the Charter

Protected under the umbrella of the Charter are the following rights and freedoms:

Fundamental Freedoms (Section 2): This section includes the right to freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communications; and freedom of peaceful assembly and association.

Democratic Rights (Sections 3, 4, & 5): These sections contain the rules that guarantee Canadians a democratic government. Included in these sections is the right to vote, the right to run for public office, and the maximum duration and sitting of legislative bodies.

Mobility Rights (Section 6): This section ensures the right to move from place to place and ensures Canadian citizens are free to enter and leave Canada as they please. It also gives citizens and permanent residents the right to move to and live in any province.

Legal Rights (Section 7-14): These sections set out the rights that protect us in our dealings with the justice system. They ensure that individuals who are involved in legal proceedings are treated fairly, especially those charged with a criminal offence. Included in the legal rights are the right to: life, liberty, and security of the person; to be secure from unreasonable search and seizure; not to be subject to arbitrary detention or imprisonment; to be informed promptly for reasons for any arrest or detention; to retain and instruct counsel on arrest or detention; to trial within a reasonable time by an impartial tribunal; to the presumption of innocence; protection against self-incrimination; not to be subjected to cruel and unusual treatment or punishment; and the right to the assistance of an interpreter.

Equality Rights (Section 15): This section includes the right to equal treatment before and under the law; and to equal benefit and protection of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability. The courts have also recognized other grounds of discrimination that are not specifically set out in the Charter such as sexual orientation and marital status. This section came into effect in 1985.

Language Rights (Sections 16 - 20): These sections confirm that English and French are the official languages of Canada, and assert the equality of the French and English languages in particular situations. Included in the language rights is the right to use English or French in Parliament, and in any court established by Parliament, including the Supreme Court of Canada. Federal laws must also be published in both English and French.

Minority Language Education Rights (Section 23): This section establishes Provincial governments must provide certain English or French language minority rights. Minority language education applies when there is a sufficient number of eligible children to justify providing schooling in that language.

In addition to the rights and freedoms under the Charter, there are a number of interpretive provisions:

Interpretive Provisions (Section 25 - 29): The interpretive provisions have played a significant role in Charter decisions. There are interpretive provisions dealing with aboriginal and treaty rights; the multicultural heritage of Canadians; gender equality; and denominational, separate, or dissentient schools.

The Charter contains a limiting clause that defines under what circumstances a Charter right or freedom can be limited:

Limiting Clause (section 1): The rights and freedoms in the Charter are not absolute. This section provides that certain limits on rights and freedoms are acceptable if those limitations can be justified in a "free and democratic society".

A person who believes his or her rights or freedoms have been violated can ask for a remedy under the following provisions:

Section 24: This section permits anyone whose Charter rights have been infringed or denied to apply to a court for an appropriate and just remedy.

Section 52: This section provides that the constitution of Canada is the supreme law of Canada, and that any law inconsistent with it is of no force or effect.

Scope and application of the Charter:

Section 32: According to section 32, the Charter applies to federal, provincial, and territorial legislatures and governments. Thus, the Charter protects individuals from violations of their human rights and fundamental freedoms by government.

"Notwithstanding Clause" (section 33): Both parliament and provincial legislatures have a limited power under section 33 to pass laws that are exempt from certain Charter provisions - those concerning fundamental freedoms and legal and equality rights. In order to rely on this section, parliament or a legislature must state specifically that a particular law is exempt from the Charter. It must also state which sections of the Charter do not apply. An exemption from the Charter lasts a maximum of five years.

The development of human rights protection in Canada:

The human rights movement gained momentum at the end of World War II. There was a real need to prevent the horrific acts that took place during the war from recurring. This led to the creation of the United Nations in 1945.

In 1948, the general assembly of the United Nations adopted the Universal Declaration of Human Rights ("the UDHR"). A Canadian by the name of John Peters Humphrey was one of the drafters of the UDHR. The UDHR has remained the single most cited international human rights instrument.

Canada's commitment to the protection of human rights in the domestic context was first brought to the forefront in 1960, with the Canadian Bill of Rights, a federal law protecting human rights.

In 1982, the Canadian Charter of Rights and Freedoms was proclaimed in force. It was added to the Canadian constitution as schedule B, part I of the Constitution Act, 1982.

The Canadian Charter of Rights and Freedoms continues to reflect the principles of liberty, equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and human dignity that define us as Canadians.

The influence of the Charter in other countries:

The Charter has been used as a source of guidance by other countries when drafting their own bills of rights. For example, the wording and structure of the New Zealand Bill of Rights Act, 1990 was strongly influenced by the Charter.

Charter decisions are frequently used by the courts of other countries when interpreting human rights guarantees in their bills of rights. For example, the South African constitutional court has used Charter decisions in interpreting the right to equality, right to life, right to trial within a reasonable time, freedom of religion, and freedom of expression. The courts of other countries including New Zealand, Ireland, Sri Lanka, Uganda, the United Kingdom, and Zimbabwe have also used Charter decisions from Canadian courts.

Today's Trivia

The Canadian Charter of Rights and Freedoms

What is the Charter?

A Closer Look at the Charter