Freedom of Religion, Thought, Belief, and Expression
Section 2 of the Charter states we have the right to freedom of conscience and religion. It also guarantees our freedom of thought, belief, opinion, and expression, including freedom of the press and other media. Section 2 also protects our right to hold peaceful assemblies and to associate with whomever we choose. The courts have interpreted freedom of religion to include the right to entertain whatever religious beliefs you choose. This includes choosing non-belief. According to the courts, the government should not pass any laws that have the effect of pressuring individuals to choose any specific religion or to observe its customs.
Freedom of thought, belief, opinion and expression and freedom of the press are guaranteed, but these rights are only protected to the extent that they do not deprive other Canadians of their constitutional rights. For example, promoting hatred toward a certain social or ethnic group is not seen by the courts as an acceptable exercise of freedom of expression because it could infringe on the constitutional rights of people in that particular group. The laws we have against hate speech, obscenity, defamation, libel, and slander are other examples of how these rights are not unlimited. Our rights to meet in peaceful groups and to associate freely are crucial to preserving freedom and democracy in our society. These rights mean we may meet with whomever we choose in order to discuss things like common goals or political opinions. This allows people to challenge the government or try to cause social change without fear of being punished. However, the protection would not extend to a group which wants to organize a riot or meetings to plan the commission of crimes.
Right to Vote
Section 3 guarantees that Canadian citizens have the right to vote in federal and provincial elections. It also guarantees that Canadian citizens may run to be elected to federal and provincial office.
Time Period between Elections
Section 4 states that no federal or provincial government may continue in power for more than five years without an election. It is a fundamental principle of democracy that no government may hold power indefinitely without being elected regularly by the people. The second part of section 4 provides an exemption to the above, where a government in power may continue beyond five years if wars, invasions, or insurrections occur, and if such a continuance is not opposed by the vote of more than one-third of the members of the Parliament or Legislature.
Section 5 ensures that the federal Parliament and the provincial Legislatures must sit at least once every twelve months. This law helps to guarantee that our elected representatives remain accountable to the voters and to the other members of the federal and provincial houses.
The Right to Enter, Remain in, and Leave Canada
Section 6 guarantees all Canadian citizens the right to enter, remain in, and leave Canada. Citizens and permanent residents are also guaranteed the right to move and to live in any province, and to look for work there. However, these rights are subject to any provincial legislation of general application such as laws setting out the qualifications you need to be a doctor or a lawyer. This allows provinces to set reasonable residency requirements for public services like health care. Provinces may also develop employment programs for socially and commercially disadvantaged residents in that province without violating your rights under this section. Laws permitting extradition, deportation, quarantine, and imprisonment appear to violate the rights under this section. However, in most cases courts would probably find the limits such laws place on your rights to be justifiable even in a free and democratic society. The right to gain a livelihood in any province means the government should not act to prevent you from getting a job. It does not put an obligation on the government to provide you with employment.
Section 7 gives a general statement of the rights in the Charter known as legal rights. More detailed examples of legal rights are set out in sections 9 through 14. These sections deal mainly with the protection of the individual when he or she is subject to some sort of legal proceedings. These proceedings are most often criminal or administrative. Section 7 is designed to ensure the power of the state does not overcome the individual. Section 7 protects the right to life, liberty, and personal security. If the state wishes to take action that violates these rights, it must do so in accordance with the principles of fundamental justice. For example, if the state wishes to imprison someone for committing a criminal offence, that individual must be presumed innocent, the state must prove the person is guilty, and the accused must receive a fair trial. If such requirements of fundamental justice are met, imprisonment will not violate the liberty rights given under section 7. This Charter right has also been used to protect rights to bodily integrity and personal autonomy. Legislation that forces individuals to receive medical treatment could be challenged under this section.
Section 7 is of particular interest to women, for it is under this section that abortion laws have been challenged. The Supreme Court of Canada used section 7 in striking down the criminal abortion law on the basis that the administrative barriers to abortion created by that law were a violation of a woman’s right to liberty and security of the person.
Unreasonable Search and Seizure
Section 8 of the Charter guarantees the right to be secure against unreasonable search and seizure. Preserving these rights maintains a balance between the objectives of law enforcement and an individual’s right to privacy. Some agents of the state may carry out searches, but according to the Charter, these searches can only be done where there are reasonable grounds to believe you have evidence of an offence on your person (e.g. a concealed weapon). These searches would not be reasonable if the police were just suspicious of you. Generally, the police may not search you, your home, or your vehicle unless they have a valid search warrant granted to them by a judge. If they do not have a warrant, they may still perform a search, but they would have to prove they had reasonable and probable grounds for doing so. They might have had reasonable grounds to search you for drugs if an informant had told them you were carrying drugs. Unreasonable seizure might occur if authorities took samples of blood or other bodily fluids without having legal authority to do so.
Your right to be free from unreasonable search and seizure does not apply once you have been arrested. After the police place you under arrest, they have the right to search you for evidence, weapons, etc. However, the manner in which the search is carried out must also be reasonable. If the authorities use excessive force or violence in carrying out the search, they have likely violated your rights.
Detention and Imprisonment
Section 9 guarantees that you will not be detained or imprisoned by the authorities unless they have a valid reason to do so. This prevents authorities from holding you unless the law gives them that power. It could also be used to challenge laws that allowed you to be detained or imprisoned without just cause. It is not always clear what government actions fall within the meaning of “detention.” Generally, you are detained once the authorities are exercising some control over your movements or placing restraints on your liberty.
Rights upon Arrest or Detention
Section 10 provides personal rights that apply upon arrest or detention. This section guarantees you several rights:
You have the right to be told why you are being arrested or detained. It is important that you be told the reasons as soon as possible. You have the right to contact a lawyer without delay, and the police must inform you of that right. The right to counsel may include the right to consult with your lawyer in private. In some situations, it may be acceptable for police to deny you access to a lawyer temporarily, for instance, if they are arresting several people for the crime they might be justified in denying you the use of the phone until they have arrested everyone.
Once arrested, you can be taken into custody, but you are not obligated to answer any questions and you should not do so until you have spoken to a lawyer. This right places an obligation on the arresting officer to give you a reasonable opportunity to contact counsel. The police should stop questioning you once you ask to see a lawyer. They can resume questioning once you have spoken to counsel. There are some exceptions however, for example, if you are driving a motor vehicle and are stopped by a police officer, you must show your driver’s license if asked to do so. If the police request that you attend at a police station and give a breath sample, the police must advise you of your rights and give you the opportunity to exercise them if you so wish.
If you have not been arrested, then you do not have to go with the police for questioning even if they ask you to do so. If you do go with the police voluntarily, section 10 does not apply; that is, you do not have the right to consult a lawyer, etc.
Rights When Charged with an Offence
Your rights under section 11 are activated when you are charged with an offence. You are guaranteed the right to be informed of the charge(s) against you without delay. This means the nature and the cause of the charges should be explained to you—an indication of the alleged acts or events that led to the charge would be necessary. You should also be told the when and where the alleged offence occurred.
You have the right to be tried within a reasonable time from the date you are charged with an offence. The courts have tried in several cases to define “reasonable delay” but for now it depends on the factors in each case. Some of these are the actual length of the delay, whether the delay has somehow prejudiced the accused (e.g. your key witness died before trial), whether the delay is caused by lack of court time or whether or not you have agreed to give up your right to a speedy trial. If you are responsible for the delay (you have asked for adjournments or you failed to appear in court), you will not be able to claim a violation of this Charter right. Section 11 also guarantees that you will not be forced to be a witness in your own trial.
This section guarantees one of the most important rights in the criminal justice system—the right to be presumed innocent until proven guilty. You are also guaranteed the right to a fair and public hearing before an independent and impartial tribunal. The presumption of innocence places an obligation on the Crown to present enough evidence in court to convince the judge or jury, beyond a reasonable doubt, of your guilt. The concepts of a fair trial or an independent and impartial tribunal are less concrete. Your right to a fair trial might be violated if the judge or jury is told you were previously convicted for the same offence before they give their verdict. Massive press coverage about a crime could deprive someone of their right to a trial before an impartial tribunal as that would make it difficult to find jurors or a judge who had not been biased by the media reports. The courts have decided that the combined effect of your section 7 rights and your right to a fair trial give you the right to be represented by counsel at trial. This means you should be given the opportunity to get a lawyer before having to go through a trial. However, if you deliberately fail to hire a lawyer or you fire a lawyer just to delay the trial, proceeding to trial when you do not have counsel might not violate your Charter rights. Another Charter right under this section is the right to reasonable bail. A judge should not deny you bail without just cause for doing so. Some valid reasons for denying bail might be: a lengthy criminal record, other charges pending, you are only visiting the country, or concern that you will not show up for a scheduled court appearance. If a judge were to impose a condition for release that he or she knew you would be unable to meet, this might violate your Charter rights. You are guaranteed the right to a jury trial if you are charged with an offence that has a maximum penalty of five or more years in jail.
This section also protects you from being found guilty of an offence due to some act or omission, unless at the time of the act of omission it was an offence under Canadian or International law. Should the punishment for an offence change between the time you are charged and the time you are sentenced, you are entitled to the lesser punishment.
Finally, section 11 guarantees that if you are tried and acquitted (freed or cleared) of an offence or found guilty and punished for an offence, you cannot be tried again for the same offence. This does not mean that once you are convicted of shoplifting you can never be convicted for it again. It means that you cannot be charged twice for the same act—same offence, same date, same act/omission, same victim, etc.
Cruel and Unusual Treatment
This Charter right (section 12) states that everyone has the right not to be subjected to cruel and unusual treatment or punishment. The courts have recognized that the meaning of “cruel and unusual” changes depending on the circumstances in each case. For instance, sentencing someone to life imprisonment for driving five km/h over the speed limit would be cruel and unusual, but if they committed first degree murder it is not. The courts look at the overall situation and ask if the punishment is so excessive it would “outrage standards of decency”—if it does, it violates the Charter. This section can be extremely useful in protecting the rights of prisoners or mental health patients.
Protection from Self-Incrimination
Section 13 protects you from self-incrimination. If you are testifying in a trial where you are not the individual accused of the offence and you give evidence that could be used to incriminate you, that evidence cannot be used against you if you are later put on trial, unless it is a trial for perjury. If you are tried for an offence and a re-trial is ordered, this right can be used to keep out evidence that was given at the first trial. This right is not only available in criminal proceedings. You are protected in any legal proceeding that exposes you to some sort of “charge, penalty, or forfeiture.”
Right to an Interpreter
Section 14 guarantees you the right to have an interpreter present during legal proceedings, if you are unable to understand the language in which the proceedings will be conducted. This right applies to civil and criminal proceedings and even to proceedings before a tribunal.
Section 15 should be of particular interest to women because it deals with “equality rights.” This section specifically prohibits discrimination on the grounds of race, national or ethnic origin, colour, religion, gender, age, or mental or physical disability. As well, section 15 implicitly prohibits discrimination on other grounds relating to personal characteristics of the individual or group. For example, discrimination on the basis of pregnancy, marital status, or sexual orientation may be illegal under the Charter. This section does not protect people from discrimination in the private sector. In Alberta, the Alberta Human Rights Act provides this protection. See the Alberta Human Rights Act section for more information. According to section 15(1), every individual is “equal before and under the law and has the right to the equal protection and equal benefit of the law.” This does not guarantee absolute equality. Section 1 of the Charter makes it clear that all Charter rights are subject to “such reasonable limits prescribed by law as can be justified in a free and democratic society.” For example, laws that make distinctions on the basis of gender in order to attain necessary social objectives may be acceptable. However, if a discriminatory law cannot be justified, then it has no force. Under section 15(2), certain kinds of affirmative action programs are permissible. Programs which, for example, provide for the hiring, job training, or promotion of women will be protected by section 15(2), if they are aimed at the improvement of conditions of disadvantaged women. This section does not give women a right to preferential treatment, but without section 15(2), such programs might be viewed as reverse discrimination and, therefore, illegal under section 15(1).
Sections 16 through 22 recognize Canada’s official languages of French and English. Those languages have equal status in the federal Parliament and in federal government agencies. This means that both French and English may be spoken in the House of Commons, and that federal government services must be made available in both languages.
Language of Education
Section 23 also deals with language rights in the area of education. It goes beyond the rights in sections 16 through 22, and guarantees that English and French speaking minorities in a province can have their children educated in their own language. The right only applies when: the minority language is the parents’ first language learned, and the minority language is still understood by the parents, or the parents were educated in primary school in that language in a province where it was a minority language, or the parents had another child educated in primary or secondary school in that minority language. Even if all these conditions are met, the government is not obligated to provide educational services in the minority language unless there are enough students to justify supplying a teacher, facilities, etc. out of public funds.
Section 26 recognizes that there are other rights that exist, outside the Charter, at common law or in other human rights statutes. These other rights are to co-exist with the Charter unless the other rights themselves violate the Charter, in which case the Charter will override it.
Section 27 requires the courts to interpret the Charter in a way that is consistent with the preservation and enhancement of the multicultural heritage of Canadians. It does not actually state that there are cultural rights, but does direct the courts on how to interpret the rights contained in the Charter. To date, the courts have mainly used it when interpreting the rights of freedom of expression and religion, and equality rights.
Section 28 states that all rights and freedoms under the Charter must be given to men and women equally.