Queen Elizabeth II with then-prime minister Pierre Elliott Trudeau signing the Constitution in April 1982. Photo by Robert Cooper / Library and Archives Canada
The Canadian Charter of Rights and Freedoms is a bill of rights built into the Canadian Constitution. It guarantees fundamental freedoms and political rights to Canadian citizens and civil rights to everyone in Canada.
The Charter is one of the most important laws in Canada, both in what it represents and its power. All other laws must conform to the Constitution and those that violate Charter rights can be declared invalid.
The Charter establishes all the important rights and freedoms Canadians enjoy, including:
- The right to life, liberty and security;
- Freedom of expression, thought, and religion;
- The right to participate in political activities and a democratic government;
- Freedom to travel around and move within Canada, or to leave it; and
- The right to use either of Canada’s official languages.
It also establishes many legal rights, such as freedom from unreasonable search and seizure, the right to a lawyer, freedom from arbitrary detention, and the right to be presumed innocent until proven guilty.
The Charter was signed into law in 1982, but Canadians still had those rights before then. Prior to 1982, the Canadian Bill of Rights offered those same rights and freedoms, but didn’t have the same legal stature as the charter does. It wasn’t entrenched in the Constitution and didn’t allow the courts to strike down laws that may violate the rights detailed within.
If your rights are denied
The Charter prescribes three remedies for any violation of your rights.
Section 24 says anyone whose rights are violated can apply to a court and seek “such remedy as the court considers appropriate and just in the circumstances.”
The second solution pertains to legal proceedings where the police or a similar agency violates your rights. For example, if they obtained evidence through an unlawful search, a court could disallow that evidence.
Finally, the Charter allows courts to strike down a law that violates it.
When laws conflict with the Charter
Many court cases have revolved around a violation (or perceived violation) of Charter rights.
Sometimes, a law is found sufficiently unconstitutional that it is struck down by the courts.
One landmark example is the 1998 Supreme Court of Canada decision that struck down Canada’s abortion laws, saying they infringed upon a woman’s right to life, liberty and security of person.
Or in other cases, a court may find that, even though a law violates a legal right, that violation is reasonable or justifiable. In 1990, an Alberta teacher accused of anti-Semitic speech argued that Canada’s hate speech laws violated his right to freedom of expression. The court agreed with him, but still ruled that his right to hateful speech was not more valuable than the laws meant to suppress it.
What’s the notwithstanding clause?
Section 33 of the Charter, generally known as the notwithstanding clause, allows the federal or provincial governments to enact legislation that overrides some Charter rights, such as freedom of expression and freedom of assembly.
In one example, Alberta used the clause in its 2000 Marriage Amendment Act, which defined marriage exclusively as between a man and a woman. It inserted the clause in order to insulate the law from legal challenges. However, a later Supreme Court decision ruled the province didn’t have the authority to define the term in the first place.
The notwithstanding clause can’t override certain rights, such as mobility and equality. Also, a clause declaration expires after five years.
Canadian Charter of Rights and Freedoms
How your rights are protected