What is the Canadian Charter of Rights and Freedoms?
The Canadian Charter of Rights and Freedoms, also more commonly referred to as the Charter, is a part of the Constitution Act, 1982, which guarantees certain rights and freedoms to all Canadians. A right is a legal claim to something that the state must grant, whereas a freedom is an opportunity to do something without state interferences.
Section 1 of the Charter serves two purposes as it ensures that the government cannot irrationally limit or infringe upon the rights that are provided within the legislation, while also is the clause that is used to place limitiations on the rights if it can be reasonably justified. Thus, section 1 both guarantees and limits Charter rights and freedoms.
1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The Courts take a two-step approach to determining whether or not a Charter violation can be justified. The first step is to determine whether or not the issue (law or government action) is of importance to society. If the issue is considered important, the Court will then examine whether or not the limit is rationally connected to the objective of the issue, the limit impairs the right in question as little as possible, and that the limit on the right is proportional to the purpose of the law or government action. If the answer to any of the questions is no, the law or action will not be considered proportional, and an infringement will be deemed to have occured. If the answer to all of the questions is yes, the infringement will be justified.
Section 7: Life, liberty and security of the person
7 Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 7 rights of the Charter are not absolute and can be taken away according to the principles of fundamental justice. These principles can generally be considered core values within the justice system that society believes ought to prevail over an individual's right to life, liberty, and security. Whether or not a principle can be said to be a principle of fundamental justice is something that is determined on a case by case basis, and it is important to note that, while the "perfect balance" is not a principle itself, balancing the interests of both society and the individual is something that taken into consideration when making the determination.
There's a two-step test to determine whether or not a law or state action violates this section. The first step is to determine whether or not a person's life, liberty, and/or security is being deprived. If it is determined that there is a deprivation, it must be determined whether or not the deprivation is in accordance with the principles of fundamental justice.
It is important to note that there is no independent right to fundamental justice, and accordingly there will be no violation of section 7 if there is no deprivation of life, liberty, or security of the person.
Section 8: Search or seizure
8 Everyone has the right to be secure against unreasonable search or seizure.
Section 8 protects people (not places) from unjust government intrusion and is triggered once the accused establishes a reasonable expectation of privacy. The protections are in place to prevent unjustified searches before they take place, not to determine whether or not a search should have occured. These protections are essential to ensure that citizens can be left alone and that the state cannot search something or someone simply because they have a feeling evidence can be obtained.
There's a two-step test to determine whether or not a search or seizure can be considered unreasonable. The first step is determining whether or not a "search" or "seizure" has taken place. A search is considered any activity by the state that interferes with a person's reasonable expectation of privacy, and a seizure is considered to occur when the state takes something from a person without consent. If a search or seizure has occured, it will be considered reasonable where it is authorized by law, where the law is reasonable, and if the manner in which it is carried out is reasonable. If an unreasonable search or seizure has occured, the accused can request that the evidence obtained from the search or seizure be excluded, or that the charges be stayed (dismissed) due to the unreasonable conduct.
There are certain types of searches that can occur where the police do not require a warrant.
- Consent searches: searches where police request permission to search from the owner or occupier of the premises, and permission is granted;
- Search incident to arrest: the police may search the person under arrest and the immediate area surrounding the person for weapons and/or destruction of evidence;
- Inventory search: the police may conduct a search of a person being placed in custody in order to secure his or her personal posessions;
- Search to protect the safety of the public: the police may search an area if there is a reasonable fear that the safety of the public is in immient danger;
- Search necessary to prevent destruction of evidence: the police may search an area where there is imminent danger that evidence will be lost, removed, destroyed, or disappear if the search is delayed; and,
- "Hot pursuit" searches: the police may enter a dwelling-house to apprehend a person when it is believed that entry is necessary to prevent imminent bodily harm or death to any person, or to prevent the imminent loss or destruction of evidence.
Section 9: Detention or imprisonment
9 Everyone has the right not to be arbitrarily detained or imprisoned.
Section 9 is intended to protect an individual's liberty and balance the individual's rights to be free from unjustifiable state interference and the ability to investigate offences. The right to be protected against arbitrary detention can be thought of as an extension to the right to liberty provided for in section 7. A detention will not be considered arbitrary unless the law authorizing it is arbitrary.
There is a two-step test to determine whether or not a detention is unreasonable. The first step is determining whether or not a person was detained or imprisoned, and the second step is determining whether or not the detention was arbitrary. A detention occurs when there is any type of restraint of liberty, and as such, a person can be detained in situations where no arrest has taken place. If the police physically or psychologically deprive a person from their choice to walk away, it may be considered a detention. For the detention to be arbitrary, it must be random, unjustified, or unpredictable.
Section 10: Arrest or detention
10 Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefore;
(b) to retain and instruct counsel without delay and to be informed of that right; and,
(c) to have the validity of the detention detention by way of habeas corpus and to be released if the detention is not lawful.
Sections 10(a) and (b) are triggered upon an accused's arrest or detention. A restraint of liberty, other than situations of arrest, in which a person may reasonably require a lawyer or paralegal constitutes a detention. A person must be informed of the reasons for their arrest or detention, be informed about their right to consult with a lawyer or paralegal, and be provided with a reasonable opportunity to do so. It is important that an accused be provided an opportunity to speak wiht a lawyer or paralegal to receive advice on how to exercise their Charter rights; however, after speaking with a lawyer or paralegal, an accused person does not have the right to re-consult unless there is a change in circumstances.
It is important to note that a police officer may ignore an accused's choice to remain silent and throughout the questioning, the police may attempt to change the accused's mind about their choice to remain silent.
Section 10(c) codifies the right of a detained person to be brought before the Court to have the legality of the detention reviewed. Unlike the right to be informed of the reasons for detention and to speak with counsel, this right is not often immediate, and the timing depends on the circumstances and severity of the situation.
There are three steps involved in an application for habeas corpus.
- The applicant must demonstrate the deprivation of liberty;
- The applicant must raise a ground to question the validity and legality of the detention; and,
- The state must demonstrate that it is a lawful detention.
Section 11: Proceedings in criminal and penal matters
11 Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
Section 11 applies to every offence (criminal, quasi-criminal, and regulatory) in Canada from the moment a charge is laid to the conclusion of the matter. There are different rights that are triggered at different stages of the proceedings, which act as a response to the inequality in balance of power throughout the proceedings. An accused person is providied with constitutional protection throughout the legal process to offset the inherent advantage that the state has.
Section 24(1): Enforcement of guaranteed rights and freedom
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Section 24(1) permits a person whose rights have been directly or indirectly violated to apply to a Court for a remedy deemed appropriate. It is important to note that the Court's remedial power is discretionary and can be limited. In criminal cases, the trial court is considered a competent court to deal with applications for most Charter remedies.
In order for a remedy to be considered "appropriate and just" it will:
- Be meaningful, relevant to the experience of the applicant, and address the circumstances where the right was infringed or denied;
- Respect the basic constitutional powers;
- Remain within the power of the judiciary and competence; and,
- Be fair to the party in which it is imposed against and not impose any unrelated harships.
Section 24(2): Exclusion of evidence bringing administration of justice into disrepute
24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Section 24(2) maintains the good repute of the administration of justice and ensures that the administration of justice is not brought into disrepute by admitting evidence that was improperly obtained. Courts must assess the seriousness of the Charter infringing conduct, the impact of the breach on the accused's rights, and society's interest in the outcome of the case by admitting or excluding the evidence.
There are three pre-conditions that must be met in order for evidence to be excluded under this section.
- The applicant's rights or freedoms have been unjustifiably limited or denied;
- The evidence was obtained in a manner that limited or denied a guaranteed right or freedom; and,
- The admission of the evidence is capable of bringing the administration of justice into disrepute.