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Difference between revisions of "Charter Rights: Legal Rights"
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Charter Rights: Legal Rights (view source)
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{{REVIEWEDPLS | reviewer = [https://www.vancrimlaw.com/Lawyers/Brock-Martland-QC.shtml Brock Martland], Martland & Saulnier|date= July 2018}} {{Dial-A-Law TOC|expanded = rights}} | {{REVIEWEDPLS | reviewer = [https://www.vancrimlaw.com/Lawyers/Brock-Martland-QC.shtml Brock Martland], Martland & Saulnier|date= July 2018}} {{Dial-A-Law TOC|expanded = rights}} | ||
A number of | A number of legal rights are enshrined in the ''Charter of Right''s and Freedoms. Learn about these rights, and what a court can do if your legal rights are violated. | ||
== | ==What you should know== | ||
===The Charter guarantees a number of legal rights=== | ===The Charter guarantees a number of legal rights=== | ||
The | The [https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html ''Charter of Rights and Freedoms''] is part of Canada’s Constitution and protects a broad range of rights and freedoms. Among the rights guaranteed by the Charter are a number of '''legal rights'''. Several are aimed at ensuring anyone accused of a crime is treated in a just and fair manner. Some apply to witnesses who testify in court proceedings. | ||
Some of these rights existed long before the Charter. Some added to or improved the rights Canadians enjoyed before the Charter became law in 1982. | Some of these rights existed long before the Charter. Some added to or improved the rights Canadians enjoyed before the Charter became law in 1982. | ||
The legal rights in the Charter most often apply in criminal cases. They can also come into play when people deal with government agencies. | The legal rights in the Charter most often apply in criminal cases. They can also come into play when people deal with government agencies. | ||
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{| class="wikitable" | {| class="wikitable" | ||
|align="left"|'''Tip''' | |align="left"|'''Tip''' | ||
For more on your rights under the Charter, see our [[Charter Rights: Overview | For more on your rights under the Charter, see our [[Charter Rights: Overview|overview of the Charter]] and our information on [[Charter Rights: Equality Rights|equality rights]]. | ||
|} | |} | ||
===Right to life, liberty and security of the person (section 7)=== | ===Right to life, liberty and security of the person (section 7)=== | ||
Everyone has the '''right to life, liberty and security of the person''', and the right not to be deprived of these things except in accordance with the “principles of fundamental | Everyone has the '''right to life, liberty and security of the person''', and the right not to be deprived of these things except in accordance with the “principles of fundamental justice." | ||
Section 7 of 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 things. The Charter protects conduct that people are free to pursue. If the government interferes with your liberty or security, it must follow fair laws and procedures. | Section 7 of 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 things. The Charter protects conduct that people are free to pursue. If the government interferes with your liberty or security, it must follow fair laws and procedures. | ||
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===Right to be secure against unreasonable search or seizure (section 8)=== | ===Right to be secure against unreasonable search or seizure (section 8)=== | ||
Everyone has the '''right to be secure against unreasonable search or seizure'''. Section 8 of the Charter 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. | Everyone has the '''right to be secure against unreasonable search or seizure'''. Section 8 of the Charter 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. | ||
Before police can search or seize, they must have a good reason to do so. For example, if the police suspect you have stolen cellphones, they cannot just enter your apartment and search you and your rooms. The police can go to court to get a search warrant, explaining their reasons. If the court agrees those reasons are sufficient, they can issue a warrant authorizing the search. | Before police can search or seize, they must have a good reason to do so. For example, if the police suspect you have stolen cellphones, they cannot just enter your apartment and search you and your rooms. The police can go to court to get a search warrant, explaining their reasons. If the court agrees those reasons are sufficient, they can issue a warrant authorizing the search. | ||
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Everyone has the '''right not to be arbitrarily detained or imprisoned'''. Something is arbitrary if there is no good reason for it. Being detained is when you are kept somewhere you don’t want to be. | Everyone has the '''right not to be arbitrarily detained or imprisoned'''. Something is arbitrary if there is no good reason for it. Being detained is when you are kept somewhere you don’t want to be. | ||
The ''Criminal Code'' and other laws set out when someone can be detained or arrested. Those laws must be consistent with section 9 of the Charter. For example, police can only detain you if there are '''reasonable grounds''' (good reasons) to suspect you are connected to a crime. If police arrest you, you must be brought before a justice of the peace (a court officer who deals with process matters) as soon as possible — normally within 24 hours — to see if you can be released from custody. The police cannot hold you in custody without justifying this is needed. | The ''Criminal Code'' and other laws set out when someone can be detained or arrested. Those laws must be consistent with section 9 of the Charter. For example, police can only detain you if there are '''reasonable grounds''' (good reasons) to suspect you are connected to a crime. If police arrest you, you must be brought before a justice of the peace (a court officer who deals with process matters) as soon as possible — normally within 24 hours — to see if you can be released from custody. The police cannot hold you in custody without justifying this is needed. | ||
Another example: let’s say the police stop you as you walk along the sidewalk. If the police reasonably believe you are connected to a crime, they have a legal power to stop (that is, detain) you to ask questions. If the police have reasonable grounds to arrest you for committing a crime, they can arrest you. But if the police are just making conversation, you can ask the police whether you are free to go. If the answer is no, you are being detained, and you could ask the police what legal authority they are relying on to detain you. | Another example: let’s say the police stop you as you walk along the sidewalk. If the police reasonably believe you are connected to a crime, they have a legal power to stop (that is, detain) you to ask questions. If the police have reasonable grounds to arrest you for committing a crime, they can arrest you. But if the police are just making conversation, you can ask the police whether you are free to go. If the answer is no, you are being detained, and you could ask the police what legal authority they are relying on to detain you. | ||
===Right to know the reasons you’re arrested or detained (section 10)=== | ===Right to know the reasons you’re arrested or detained (section 10)=== | ||
Everyone, if police arrest or detain them, has the '''right to be informed promptly of the reasons for the arrest or detention'''. | Everyone, if police arrest or detain them, has the '''right to be informed promptly of the reasons for the arrest or detention'''. | ||
You also have the right to speak to a lawyer immediately — before the police question you — and to be told you have that right. The police must give you privacy and a way to exercise your right to call a lawyer. | You also have the right to speak to a lawyer immediately — before the police question you — and to be told you have that right. The police must give you privacy and a way to exercise your right to call a lawyer. | ||
===Rights if you’re charged with a crime (section 11)=== | ===Rights if you’re charged with a crime (section 11)=== | ||
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 of the specific offence you are charged with''', without unreasonable delay. | 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 of the specific offence you are charged with''', without unreasonable delay. | ||
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 jail for five years or more (the ''Criminal Code'' also gives a right to trial by jury for some other serious offences). | 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 jail for five years or more (the ''Criminal Code'' also gives a right to trial by jury for some other serious offences). | ||
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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). | 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 of the Charter says testimony from a witness showing they committed criminal activity '''cannot be used against them''' to prove they are guilty of that criminal activity. | 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 of the Charter says testimony from a witness showing they committed criminal activity '''cannot be used against them''' to prove they are guilty of that criminal activity. | ||
That said, a prosecutor can use a witness’s answer to show they are lying under oath (committing perjury) in that case, or in a later case if they are charged and deny the criminal activity. | That said, a prosecutor can use a witness’s answer to show they are lying under oath (committing perjury) in that case, or in a later case if they are charged and deny the criminal activity. | ||
===Right to an interpreter (section 14)=== | ===Right to an interpreter (section 14)=== | ||
Everyone has the | Everyone has 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. | ||
===Charter rights are not absolute=== | ===Charter rights are not absolute=== | ||
These legal rights are 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, a government can try to justify the violation as a | These legal rights are 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, a government can try to 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." | ||
If a government tries to rely on section 1 to justify a Charter violation, a court can decide if the violation is a reasonable limit. The court will look at 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? | If a government tries to rely on section 1 to justify a Charter violation, a court can decide if the violation is a reasonable limit. The court will look at 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? | ||
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The Charter gives courts lots of discretion about the '''remedy''' they can order if a Charter right is violated. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected. | The Charter gives courts lots of discretion about the '''remedy''' they can order if a Charter right is violated. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected. | ||
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. In some cases, a broad remedy may be necessary, such as '''declaring that a law is unconstitutional'''. This is often referred to as ”striking down a | 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. In some cases, a broad remedy may be necessary, such as '''declaring that a law is unconstitutional'''. This is often referred to as ”striking down a law." For example, if the government passed a law giving sweeping power for police to search vehicles, the court could decide to strike down the law as violating the Charter right to be secure against unreasonable search. In this way the remedy helps everyone affected by the law. | ||
In other cases, an '''individual (personal) remedy''' is ordered. 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 “stay” (terminate) the charges against that person. That means the trial won’t proceed and the person won’t be convicted. | In other cases, an '''individual (personal) remedy''' is ordered. 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 “stay” (terminate) the charges against that person. That means the trial won’t proceed and the person won’t be convicted. | ||
