==The Charter protects several rights and freedoms—but there are reasonable limits==The ''[http://laws-lois.justice.gc.ca/eng/Const/page-15.html Canadian Charter of Rights and Freedoms]'' is part one of Canada’s [http://most important laws-lois.justice.gc.ca/eng/Const/index.html Constitution]. It protects a broad range of Learn the key rights and freedoms. The protected by the Charter and how to enforce your Charter also has remedies if it is violatedrights. 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 ==Understand your legal 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.)==

===The Charter guarantees the following protects a broad range of rights and freedoms ===The ''[http://canlii.ca/t/8q7l Charter of Rights and Freedoms]'' is part of Canada’s Constitution and protects a broad range of rights:and freedoms.

* The Charter guarantees certain '''Fundamental fundamental freedoms'''—section 2 guarantees freedom of:** association** peaceful assembly** freedom of conscience and religion** freedom of thought, belief, opinion, and expression, including freedom of the press and other mediaof communication*freedom of peaceful assembly*freedom of association

* The Charter guarantees '''Democratic democratic rights'''—sections 3, 4, and 5 cover . It gives every Canadian citizen the right to vote in federal and provincial elections. It sets the maximum time between elections.

* The Charter guarantees '''Mobility mobility rights'''—section 6 guarantees . It gives every citizen the right to Canadian citizens enter, remain in, and permanent residents leave Canada. It gives everyone the right to live move to and work anywhere pursue a living in Canadaany province.

* The Charter guarantees a number of '''Legal legal rights'''—sections 7 to 14 contain , including the rights right to:** life, liberty, and security of the person ** be free from '''secure against unreasonable''' search or seizure ** not be '''arbitrarily''' detained or imprisoned** be informed promptly of the reasons for any arrest or detention and be released if the reasons are not valid** have a lawyer, if you are arrested** be presumed innocent until proven guilty in a fair and public trial within a reasonable time, hearing by an impartial tribunal, if you are charged with a crime** not give evidence against yourself** be presumed innocent** be free from subjected to cruel and unusual punishment** not have evidence you give be granted reasonable bail if appropriate** a court-appointed interpreter used against you

* The Charter guarantees '''Equality equality rights'''—section 15 ensures . It says everyone is equal benefit before the law and has the right to equal protection of the law , without discrimination. It highlights the right to be free of discrimination based on personal traits such as race, national or ethnic origin, colour, religion, sex, sexual orientationage, age or mental or physical disability.

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

Other sections deal with enforcing {| class="wikitable"|align="left"|'''Tip'''For more detail on legal and equality rights under the Charter, see our information on [[Charter of Rights and Freedoms: Legal Rights (Script 200)|legal rights (no. 200)]] and [[Charter of Rights and Freedoms: Equality Rights (Script 232)|equality rights (no. 232)]].|} ===Charter rights and freedomsare not absolute===The Charter itself recognizes that some laws might violate the Charter yet be justifiable in the broader public interest. Where a law violates a Charter right, whom they a government can be used against, and how courts have try to interpret justify the violation as a '''reasonable limit''' under section 1 of the Charter. Under that section, a reasonable limit needs to be “prescribed by law” and “demonstrably justified in a free and democratic society”.

==Section If a government tries to rely on 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 to justify a law violates the Charter. In such a caseviolation, Canada’s Parliament or a provincial legislature court can try to justify decide if the violation—under section 1—as violation is a reasonable limit on . The court will look at whether the right. Section 1 says that a reasonable limit must be prescribed by law has an important objective, and demonstrably (clearly) justified in whether the government chose a free and democratic society. If a government tries proportionate way to use section 1, meet that objective — a court can then decide if the government has justified the way that interferes as little as possible with Charter violationrights. If soFor example, could the court may allow government achieve its objective in another way, without violating Charter rights? Does the violation. law do more harm than good?

But section Section 1 applies only to written laws, . It does not apply to '''government actions'''. Examples of government actionactions would be the actions of a police officer in making an arrest, because it requires any limit on or a Charter right decision by a government department to be “prescribed by law”deny benefits. So when In these situations, where a government action—not a written law—violates action violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional. Lawyers call it this a ''Charter Breach''breach.

===The essential questions courts must decide under section 1 are whether the Charter includes a “notwithstanding” clause===If a law has an important objective and whether the cannot be justified as a reasonable limit on a right or freedom, a federal or provincial government chose a proportionate way can try to meet declare that objective—a way that interferes as little as possible with the law operates '''notwithstanding''' the Charter rights. For exampleThe Canadian Parliament has never used this notwithstanding clause, but Quebec, could the government achieve its objective in another wayAlberta, Saskatchewan, without violating Charter rights? Does the law do more harm than good?and Yukon have done so.

==Section 33=The Charter applies to government, not the notwithstanding clauseprivate sector===If a law cannot be justified as a reasonable limit You can’t rely on a right or freedomthe Charter to challenge every violation of your rights. The Charter controls '''laws''' and '''government actions'''. It doesn’t control private citizens, in some casesbusinesses, Parliament or a provincial legislature organizations. Before you can declare—under section 33—that claim the law operates notwithstanding (despite) section 2 Charter’s protection, you must show that the government, or sections 7 some agency very closely connected to 15 of the Charter. The Canadian Parliament has never used this notwithstanding clausegovernment, but Quebec, Alberta, Saskatchewansuch as a school board or labour relations board, and Yukon haveviolated your rights.

==The Charter applies to 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 assert a claim under human rights law. Depending on the situation, you might be able to rely on the BC ''Human Rights Code'' or the Canadian ''Canadian Human Rights Act''. For more , see our information on this, check script [[Human Rights and Discrimination Protection (Script 236)|human rights and discrimination protection (no. 236)]] on “Human Rights and Discrimination Protection”, and script [[Protection Against Job Discrimination (Script 270)|protection against job discrimination (no. 270)]] on “Protection Against Job Discrimination”.

==Enforcing =To enforce your Charter rights===Canadian courts interpret and enforce the Charter. The courts have described themselves as the guardians of the Charter. In that role, judges Courts 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 thingsstrike down the law or grant another '''remedy'''. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected.

What a court can do depends on what you ask for. For example, if you say that a law violates the Charter, a court will decide if the law actually does violate the Charter. If the court finds a violation, the government can try to justify the violation under section 1. You may ask a court to declare that your personal rights have been violated , or to give you a specific and personal remedy. In criminal cases, for example, the an accused person can ask the court to end the trial or to exclude evidence obtained in violation of the Charter. Or you may ask a court for a general remedy not specific to your case, such as striking down a law entirely. The court will generally assess these questions:

:'''First: was your Charter right violated?''':You have to show the Or you may ask a court that one of your Charter rights was violated. This usually means persuading the judge that the law or government action violated for a general remedy not specific Charter right. For exampleto your case, you might complain that such as striking down 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 discussion on reasonable limits under section 1entirely.

: '''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 was it an 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 considering a written law violated your rightsCharter challenge, 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 that rightwill generally assess two questions.

:Specifically====First, a court will ask if were your rights under the government acted reasonably in achieving its objective. If Charter violated?====You have to show the court finds that the government’s objective is important, the court must decide if the government is acting in a reasonable and proportionate way to achieve that objectiveone of your Charter rights was violated. The Supreme Court of Canada says this This usually depends on the answers to three more questions::# Are the means that persuading the government used to achieve its objective rationally connected to judge that objective?:# Could the a law or government have achieved the same objective in some other wayaction violated a specific Charter right. For example, without violating anyone’s rights or freedoms, or violating them to you might complain that a lesser degree?:# Is the government’s objective important enough—and are the benefits law restricting what signs you can put in your window violates freedom of expression. If you prove a violation, the law significant enough—to justify violating court will move on to a Charter right?second question.

====Second, can the government justify the law as a reasonable limit?====If a court finds the government violated your rights, the next step depends on what caused the violation:The was it a written law, or was it an action by government must prove that ? If government action caused the violation of the Charter is reasonable under section 1. Often, the government tries does not get a chance to show that the law’s '''objective''' is important to Canadian society, and that justify the violation of Charter rights is minimal.

:The more severe If a written law violated your rights, the violation, court will then consider whether the harder it is for government to can justify itthe violation as a reasonable limit under section 1 of the Charter. Charter cases can be complex rights are balanced against the rights of others and hard to resolve because courts have to consider and balance many competing the interestsof society. The court must go beyond will consider: Is the violation reasonable and justified in a free and democratic society? To decide that, the narrow facts court looks at several things, including whether the benefits of one case and consider the competing interests in relation law are significant enough to justify violating a law Charter right, and how it operates for societywhether the government could have achieved its objectives in some other way that did not violate anyone’s rights or freedoms.

==Individual and broad remedies if Charter rights violated==If you prove a violation of a Charter rightTypically, and the government cannot justify it under section 1tries to show the law’s objective is important to Canadian society, and the next question is what kind violation of remedy or consequence Charter rights is appropriate. Different kinds of remedies apply to different types of casesminimal. Section 52(1) of The more severe the ''Constitution Actviolation, 1982'' says that any law inconsistent with the Constitution harder it is of no force or effectfor government to justify it. Charter cases can be hard to resolve because courts have to consider and balance many competing interests. So a The court may declare that a law is unconstitutional. This is what must go beyond the news media mean when they talk about a court striking down a law. In such a narrow facts of one case, a court may “suspend” its declaration to give and consider the government time competing interests in relation to pass a new law that will be validand how it operates for society.

In other cases, an individual (personal) remedy ===Remedies if a Charter right is necessary. Section 24 of the Charter allows a person whose rights have been violated to apply to ===If you prove a court for violation of a remedy Charter right, and the court considers appropriate and just in government cannot justify the circumstances. The Charter gives courts lots of discretion about violation as a reasonable limit under section 1, the next question is what kind of remedy or consequence is appropriate. Different kinds of remedies they can order if a Charter right is violatedapply to different types of cases.

The type of remedy a court gives normally depends on the type of government action that violates the Charter. If a government official took the action—for exampleIn some cases, a police officer conducted an unreasonable search—the court will give an individual broad remedy that helps only the victim of the search. (In that example, the court may say that the drugs found during the illegal search can’t be used necessary, such as evidence in the criminal trial'''declaring that a law is unconstitutional'''. This helps the accused person, but it doesn’t change the law for anyone else). In other cases, a broad remedy, such is often referred to as striking ”striking down the law, may be necessarya law”. For example, if the government passed a law that discriminated based on gender, the court would give could strike down the law, giving a remedy that helps everyone affected by the law.

UsuallyIn other cases, when someone illegally interferes with your rights, you can sue them to recover any losses you suffer as a resultan individual (personal) remedy is ordered. But this does not help Section 24 of the Charter allows a person charged with a crime after an illegal search or after they've confessed whose rights have been violated to a crime without being told of their right to speak apply to a lawyer. In this type of case, court for a remedy the court can exclude evidence considers '''appropriate and just in the circumstances'''. If a criminal trial if government official took the way it was obtained violated action — for example, a Charter right. A police officer conducted an unreasonable search — the court will exclude evidence often give an individual remedy that helps only if the accused person can show whose rights were violated. The court may say that using (for example) drugs found during an illegal search can’t be used as evidence in the evidence would bring accused person’s criminal trial. This helps the accused person, but it doesn’t change the administration of justice into disreputelaw for anyone else.

'''The above was last edited reviewed for legal accuracy by John Blois[https://www.vancrimlaw.com/Lawyers/Brock-Martland-QC.shtml Brock Martland], Martland & Saulnier.'''