Charter Rights: Legal Rights

The Charter protects several rights and freedoms—but there are reasonable limits

The Canadian Charter of Rights and Freedoms is part of Canada’s Constitution. It protects a broad range of rights and freedoms and gives important rights to people accused of a crime and to people who deal with government agencies. These rights are in addition to traditional legal rights and, in some cases, improve those rights. The Charter also has remedies if it is violated.

If a court decides that a law (or part of a law) or a government action (for example, police action) violates the Charter, that law or action is not valid. But Charter rights are not absolute. If it’s a law (not an action) that violates the Charter, the government can try to justify the law as a reasonable limit under section 1. Or the government can use section 33 (the notwithstanding clause) to say that the law operates despite (or notwithstanding) the Charter. (The reasonable limits clause and the notwithstanding clause are explained later in this script.)

Legal rights in the Charter

Sections 7 to 14 of the Charter guarantee everyone in Canada certain legal rights. Some of these rights require every person accused of a crime to be treated in a just and fair manner. And some of these rights existed long before the Charter. But they are now in the Constitution.

These legal rights are not absolute. Governments can limit them under section 1 of the Charter. Apart from these limits, the Charter protects the rights described below. The legal rights in the Charter most often apply in criminal cases, but they can also apply in other cases—for example, if you worked for a government agency and your employer tried to search you before you left the office after completing your shift.

Section 7: the right to life, liberty, and security of the person

Section 7 gives everyone the right to life, liberty, and security of the person, and the right not to lose these things unless they are taken away according to principles of fundamental justice. The Charter protects more than just the right to physical liberty—the right not to be held against your will without proper process. It also protects the right to be free from physical assault and interference, and the threat of these. It protects conduct that people are free to pursue. If the government interferes with your liberty or security, it must follow fair laws and procedures.

For example, if a criminal law said you can go to jail for up to 6 months if your husband or wife commits robbery, a court would probably use section 7 to strike down this law, making it invalid. The court would say that the law takes away your liberty (you could go to jail) and it does not follow the principles of fundamental justice. One of those principles is that you must be personally responsible for a crime to be convicted; it is not enough just to know someone who did it.

An important right under section 7 is the right to remain silent if you are a suspect in a criminal offence. The police cannot force you to answer their questions, but they may continue to ask questions even if you say that you do not want to answer.

Although the Charter gives a broad right to remain silent, in some cases, people may be required to identify themselves or give some information—for example if you are crossing a border into Canada or driving a vehicle stopped by the police.

In some cases, the police are not clear about a person’s obligation to answer questions: if there’s uncertainty, you should ask the officer if you must answer the questions. In some cases, refusing to identify yourself to the police will create problems. For example, if you won’t identify yourself and do not have identity documents, the police might detain you to learn your true identity. Some lawyers recommend giving your name and date of birth but nothing more, unless the officer says you have a legal duty to give more information.

Section 8: the right to be secure against unreasonable search and seizure

Section 8 gives everyone the right to be secure against unreasonable search or seizure. Section 8 controls the laws that allow police to search your home or place of business, your phone or computer, your car, or even you, in certain cases. It also controls the actions of individual police officers. Section 8 protects your property or information if you have a reasonable expectation of privacy. So before police can search or seize, they must have a good reason to do so. For example, if the police suspect that you have stolen TVs and cell phones, they cannot just enter your apartment and search you and your rooms. Such a search would usually be unjustified if the police do not have a search warrant from a judge or justice of the peace. And even if they did have a warrant, it might not be properly issued. These are examples of searches that would be unreasonable and thus violate section 8. But section 8 does not protect your privacy in all cases. It depends on the context. Courts focus on the person’s expectation of privacy in the place, thing, or information at issue. For example, if you leave property at a friend’s house or put garbage out on the sidewalk for pick-up, you don’t have a reasonable expectation of privacy in those places. On the other hand, if you password-protect your personal computer at your home, you have a strong expectation of privacy.

Section 9: the right not to be arbitrarily arrested

Section 9 gives everyone the right not to be arbitrarily arrested, held, or imprisoned. Something is arbitrary if there is no good reason for it or if it is done because of someone's opinion and there is no good reason for that opinion. The Criminal Code and other laws control powers of arrest and those laws must be consistent with section 9 of the Charter. For example, the police can arrest a person who they reasonably believe committed a murder or fraud or some other criminal offence. The person must be brought before a Justice of the Peace as soon as possible—normally within 24 hours—to see if they can be released from custody. The police cannot hold the suspect in custody without proper grounds (or reasons) to arrest or detain them. The police must be able to justify what they did.

Another example: a person walking along the sidewalk can normally continue on their way, uninterrupted by the police—unless the police have the legal power to stop or arrest them. If the police believe the person is connected to a crime, they have a legal power to stop or detain them to investigate. If the police have reasonable grounds to arrest a person for committing a crime, they can arrest them. In this example, the person can ask the police what legal authority they are relying on, and if they are required to stop or answer questions.

Section 10: the right to know why you’re arrested

Section 10 applies if police arrest or detain you. It gives you the right to be told promptly why you are arrested or held. You also have the right to speak to a lawyer immediately—before the police question you—and to be told that you have that right. The police must give you privacy and a way to exercise your right to call a lawyer.

Section 11: rights if you’re charged with an offence

Section 11 puts several fundamental principles of Canadian criminal law into the Charter. It controls how a person charged with an offence is treated in a criminal case. Some of these rights, such as the right to be presumed innocent until proven guilty, and the right not to be a witness against yourself, existed long before the Charter. One important right with a powerful effect under the Charter is the right to a trial within a reasonable time. Another is the right to be informed without unreasonable delay of the specific offence you are charged with. Section 11 also gives a person charged with an offence the right to reasonable bail unless there is just cause (a good reason) to deny it. Section 11 provides a right to trial by jury if an offence can be punished with imprisonment for 5 years or more (the Criminal Code also gives a right to trial by jury for some other serious offences).

Section 12: the right to no treatment or punishment that is cruel and unusual

Under section 12, everyone has the right not to be subjected to cruel and unusual treatment or punishment. When courts decide whether treatment or punishment is cruel and unusual, they often ask if it is so harsh that it shocks the conscience of the Canadian public. Torture is an example of cruel and unusual treatment.

Section 13: protection against the use of your own testimony to prosecute you

At a criminal trial, the accused person can decide whether to testify (give evidence under oath) in their own defence. Other people generally cannot refuse to testify: they must do so if they receive a subpoena (a document ordering them to come to court and give evidence). If they refuse to testify, they can be charged with contempt of court. And anyone who lies in their testimony (the evidence they give) can be charged with perjury (lying under oath).

If a witness at the criminal trial of another person is asked about their own involvement in criminal activity, they must answer honestly. But a prosecutor cannot use their answers against them. Section 13 says that testimony from a witness showing they committed criminal activity cannot be used to prove they are guilty of that criminal activity. But a prosecutor can use a witness’s answer to show that they are lying under oath (committing perjury) in that case, or in a later case if they are charged and deny the criminal activity.

Section 14: the right to an interpreter

Section 14 gives everyone the right to an interpreter in any legal proceedings if they don't understand or speak the language being used, or if they’re deaf.

Other rights

Other sections of the Charter also have rights that apply to a person charged with an offence and to a person affected by a government action. Check script 232, called “Charter of Rights and Freedoms: Equality Rights”, and script 230, called “Charter of Rights and Freedoms: Overview”. The Charter’s equality rights apply to criminal law and may affect what questions a lawyer can ask a witness in court, for example. In addition to the Charter legal rights, other laws give rights to anyone charged with an offence. Some of these rights existed before the Charter and they continue to apply, although the Charter does not mention them.

Section 1 allows reasonable limits on Charter rights

Charter rights and freedoms are not absolute. The Charter and the courts recognize that governments can make laws in the broader public interest, even if a law violates the Charter. In such a case, Canada’s Parliament or a provincial legislature can try to justify the violation—under section 1—as a reasonable limit on the right. Section 1 says that a reasonable limit must be prescribed by law and demonstrably (clearly) justified in a free and democratic society. If a government uses section 1, a court can then decide if the government has justified the Charter violation. If so, the court may allow the violation.

But section 1 applies only to written laws, not to government action, because it requires any limit on a Charter right to be “prescribed by law.” So when government action—not a written law—violates the Charter, section 1 does not let the government try to justify the action. The action is unconstitutional.

The essential questions courts must decide under section 1 are whether the law has an important objective and whether the government chose a proportionate way to meet that objective—a way that interferes as little as possible with Charter rights. For example, could the government achieve its objective in another way, without violating Charter rights? Does the law do more harm than good?

Section 33, the notwithstanding clause

If a law cannot be justified as a reasonable limit on a right or freedom, in some cases, Parliament or a provincial legislature can declare—under section 33—that the law operates notwithstanding (despite) section 2 or sections 7 to 15 of the Charter. The Canadian Parliament has never used this notwithstanding clause, but Quebec, Alberta, Saskatchewan, and Yukon have.

Remedies if Charter rights violated

The Charter gives courts lots of discretion about the remedy they can use if a Charter right is violated. Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers appropriate and just in the circumstances. Whenever someone illegally interferes with your rights, you can sue them to recover any losses you suffer as a result. But this does not help a person charged with an offence after an illegal search or after they confess to a crime without being told of their right to speak to a lawyer. A court may exclude (not allow) evidence if it was obtained in a way that interfered with a Charter right. But a court will exclude evidence only if the accused person can show that using the evidence would bring the administration of justice into disrepute.

The type of remedy a court uses often depends on the type of Charter right violated. For example, if the right to a trial within a reasonable time has been denied, and it is no longer possible for a person to properly defend themselves, the court may simply “stay” (terminate) the charges. That means the trial won’t proceed and the person won’t be convicted.

Summary

The Charter gives important rights to people accused of a crime and to people who deal with government agencies. These rights are in addition to traditional legal rights and, in some cases, improve those rights. The Charter also gives remedies for Charter violations. As well, the Charter controls the actions of government officials, such as the police.

For more on the Charter, check the Charter itself, script 232, called “Charter of Rights and Freedoms: Equality Rights”, and script 230, called “Charter of Rights and Freedoms: Overview”.

[updated July 2018]

The above was last edited by John Blois.

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