The Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms, enacted in 1982, forms part of the country's Constitution. As part of the Constitution, the Charter is the supreme law of Canada. It protects the rights and freedoms of everyone in Canada.

When other laws conflict with the Charter, the courts may declare those laws invalid. However, the federal or provincial governments can pass legislation that limits the rights provided for in the Charter, if they can show that the limit is reasonable and justifiable. This concept recognizes that in Canada, a free and democratic society, rights and freedoms cannot be absolute. For example, disallowing the spread of hate propaganda represents a reasonable and justifiable limit to the guarantee of freedom of expression.

The Charter protects fundamental freedoms in Canada. Canadians may practice the religion of their choice, and assemble with whomever they choose. They may speak out on any issue as long as they don’t infringe the rights of others. The Charter guarantees the right of the media to print and broadcast the news.

The Charter provides democratic rights to Canadians, including the right to vote and seek election, except in the case of minors, which legislators considered a reasonable limit to these rights. The Charter also confirms that Parliament must meet at least once a year, so that it can perform its duties and remain accountable to Canadians.

The Charter protects mobility rights, giving citizens and permanent residents the right to live or work anywhere in Canada. Legal rights stated in the Charter include the presumption of innocence until proven guilty in a fair and public hearing, and the right to life, liberty and security of the person. As well, everyone has the right to protection from unreasonable searches and seizures. Even when police have legal authority to undertake a search and seizure, they cannot use excessive force.

The Charter grants Canadians the right not to be detained arbitrarily. Police cannot arrest a person without reasonable grounds to do so. Another legal right guaranteed in the Charter gives Canadians the right to consult a lawyer without delay upon arrest and the right to a trial within a reasonable time.

The Charter guarantees equality to every individual regardless of race, religion, national or ethnic origin, colour, sex, age or disability. While this guarantee prevents discrimination, it doesn’t mean the government cannot set up programs to assist the disadvantaged in society. This represents a reasonable limit to the guarantee of equality.

The Charter recognizes aboriginal rights, including Indian, Inuit and Metis. These protect the treaty rights of the Aboriginal people and act to ensure the protection of their cultures, languages and traditions.

The rights enshrined in the Charter only form a part of the rights Canadians are entitled to. Federal and provincial statutes and the common law provide many other important rights. But unlike the rights created by statute or common law, the rights guaranteed by the Charter form part of the supreme law of Canada.

Natalie Fraser practised law in Whitby, Ontario for seventeen years and is now a freelance legal writer. She often writes for The Lawyers Weekly.