Script 200 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
The Charter protects several rights and freedoms – but there are reasonable limits
The Charter of Rights and Freedoms is part of Canada’s Constitution. It 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, which give strength and meaning to those rights. As well, the Charter controls the actions of government officials, such as the police. Both the Constitution and the Charter are available on the Canadian government website at http://laws-lois.justice.gc.ca/eng/const.
Section 1 reasonable limits: if a court or other tribunal decides that a law, or part of a law, violates the Charter, that law is not valid – unless Canada’s Parliament or a provincial legislature can justify the Charter violation – under section 1 – as a reasonable limit on the right or freedom. Section 1 says that a reasonable limit has to be prescribed by law and demonstrably (clearly) justified in a free and democratic society.
Section 33 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 say – under section 33 – that the law operates notwithstanding (in spite of) section 2 or sections 7 to 15 of the Charter (check script 230 for more on the “notwithstanding clause”). The Canadian Parliament has never used this notwithstanding clause, but Quebec, Alberta, Saskatchewan, and Yukon have.
Legal rights in the Charter
Sections 7 to 14 of the Charter guarantee everyone 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. As explained above, governments can limit them under section 1 of the Charter. Apart from these possible 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 attempted to search you before you left the premises 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 or interference, or the threat of them. 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.
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 affects the laws that permit the police to search your home or place of business, your car, or even you, in certain circumstances. It also affects the actions of individual police officers. Section 8 protects property 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 believe that you have stolen TVs and cell phones, they cannot just enter your apartment and search you and your rooms. Such a search may be unjustified if the police could have first gotten a search warrant, but did not do so. The search without a warrant could be unreasonable, and therefore, violate section 8. But section 8 does not protect your privacy in all cases. 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.
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. 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.
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 new right 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 given 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 testify (give evidence) in their own defence or refuse to testify. 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.
If a witness at the criminal trial of another person is asked about their own personal involvement in criminal activity, they must answer truthfully. But a prosecutor cannot use their answers to harm them. Section 13 says that testimony from a witness showing criminal activity by that witness cannot be used to prove the witness is guilty (except for perjury or giving contradictory evidence).
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 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.
Remedies if Charter rights violated
The Charter gives courts a lot 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 always 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 advised of their right to speak to a lawyer. A court may exclude (not consider) 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” the charges. That means the trial won’t proceed and the person won’t be convicted.
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, which give strength and meaning to those rights. As well, the Charter controls the actions of government officials, such as the police.
For more on the Charter, check the Charter itself (http://laws.justice.gc.ca/en/charter), script 232, called “Charter of Rights and Freedoms: equality rights,” and script 230, called “Charter of Rights and Freedoms: Overview.”
[updated June 2012]
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