Difference between revisions of "Charter Rights: Overview"

•Equality rights—section 15 ensures equal benefit and protection of the law without discrimination based on personal traits such as race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.  

•Language rights—section 16 makes English and French the official languages of Canada. Section 23 protects minority language education rights in certain circumstances.

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 a Charter right or freedom. In such a case, a court will ask if the government can justify the violation under section 1. This section says that Charter rights and freedoms are subject to reasonable limits prescribed by law as can be demonstrably (clearly) justified in a free and democratic society. A court may allow a violation of a Charter right if the government can meet this section 1 test. 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 violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional.

The “notwithstanding clause” —section 33

The federal and provincial governments can override specific Charter rights in certain situations. They can say that a law operates “notwithstanding” (in spite of) some Charter rights. So far, governments have used this power only rarely.

The Charter controls government, not the private sector

You can’t use the Charter to challenge every possible violation of your rights. The Charter controls government laws and other government actions. It doesn’t control private citizens, businesses, or organizations. Before you can claim the Charter’s protection, you must show that the government, or some agency very closely connected to government, such as a school board or labour-relations board, violated your rights. If a private individual, organization, or company violates your rights, you may be able to complain under the BC Human Rights Code or the Canadian Human Rights Act. For more information on this, check script 236 on"Human Rights and Discrimination Protection”, and script 270 on “Protection Against Job Discrimination”.

Enforcing Charter rights

Canadian courts interpret and enforce the Charter. The courts have described themselves as the guardians of the Charter. In that role, judges have the power to strike down and invalidate laws or other government actions. They will do so if necessary to defend a protected right or freedom. If you think a provincial or federal law or action violates your Charter rights, you can ask a court to do several things.

First: was your Charter right violated?

You have to show the court that one of your Charter rights was violated. This usually means persuading the judge that the law or government action violated a specific Charter right. For example, you might complain that a law restricting what signs you can put in your window violates freedom of expression. But even if you prove a violation, Charter rights are balanced against the rights of others and the interests of society, as explained in the earlier paragraph on reasonable limits under section 1.

Second: can the government justify—under section 1—a law that violates the Charter right?

If a court finds that the government violated your rights, the next step depends on what caused the violation: was it a written law—or action by the government or a government actor. If government action caused the violation, the government does not get a chance to justify it under section 1. In this case, the court just decides the right remedy (which the next section explains). But if a written law violated your rights, the court decides whether the government can justify the violation under section 1. Is the violation reasonable and justified in a free and democratic society? To decide that, the court looks at several things, including whether the government has an important objective in violating your right.

Specifically, a court will ask if the government acted reasonably in achieving its objective. If the court finds that the government’s objective is important, the court must decide if the government is acting in a reasonable and justified way to achieve that objective. The Supreme Court of Canada says this usually depends on the answers to three more questions:

1.Are the means that the government used to achieve its objective rationally connected to that objective?

2.Could the government have achieved the same objective in some other way, without violating anyone’s rights or freedoms, or violating them to a lesser degree?

3.Is the government’s objective important enough – and are the benefits of the law significant enough—to justify violating a Charter right?

The government must prove that the violation of the Charter is reasonable under section 1. Often, the government tries to show that the law’s objective is important to Canadian society, and that the violation of Charter rights is minimal.

 

Individual and broad remedies if Charter rights violated

If you prove a violation of a Charter right, and the government cannot justify it under section 1, the next question is what kind of remedy or consequence is appropriate. Different kinds of remedies apply to different types of cases. Section 52(1) of the Constitution Act, 1982 says that any law inconsistent with the Constitution is of no force or effect. So a court may declare that a law is unconstitutional. This is what the news media mean when they talk about a court striking down a law. In such a case, a court may “suspend” its declaration to give the government time to make a new law that will be valid.