What is the Charter?
The Canadian Charter of Rights and Freedoms protects the basic rights and freedoms of people in Canada. It is part of the Constitution, Canada’s highest law, which means other laws must follow it.
The Charter came into force on April 17, 1982, when the Constitution was brought home from Britain (patriated) under Prime Minister Pierre Elliott Trudeau. Queen Elizabeth II signed the proclamation in Ottawa.
What the Charter does
The Charter protects people from unfair actions by governments: federal, provincial, territorial and municipal, and their agencies, such as police and public schools. It does not usually apply to private disputes between people or businesses; those are covered by human rights laws.
If a government law or action violates the Charter, a court can strike it down or order a remedy.
The main sections
| Sections | Rights | Examples |
|---|---|---|
| 1 | Reasonable limits | rights can be limited if justified |
| 2 | Fundamental freedoms | conscience and religion; thought, belief, opinion and expression (including the press); peaceful assembly; association |
| 3–5 | Democratic rights | citizens can vote and run for office; elections at least every five years |
| 6 | Mobility rights | citizens can enter, stay in and leave Canada, and live and work in any province |
| 7–14 | Legal rights | life, liberty and security of the person; protection from unreasonable search; right to a lawyer; presumption of innocence; fair trial; interpreter |
| 15 | Equality rights | equal treatment without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability |
| 16–22 | Official languages | English and French have equal status in Parliament and federal government |
| 23 | Minority language education | right to education in English or French where numbers warrant |
| 25 | Indigenous rights | Charter does not reduce Aboriginal, treaty or other rights of Indigenous peoples |
| 27 | Multicultural heritage | Charter must be interpreted in a way that respects Canada’s multicultural heritage |
| 28 | Gender equality | rights apply equally to men and women |
| 33 | Notwithstanding clause | allows certain rights to be overridden temporarily |
Courts have ruled that section 15 also protects against discrimination based on sexual orientation, marital status and other similar grounds.
Rights have limits: section 1
Section 1 says Charter rights are subject to reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society.
In the case R. v. Oakes (1986), the Supreme Court created a test to decide if a limit is reasonable:
- Is the law’s goal pressing and important?
- Is the limit rationally connected to the goal?
- Does it limit the right as little as possible?
- Do the benefits outweigh the harm?
For example, laws against hate propaganda limit freedom of expression, but the Supreme Court found that limit reasonable because of the serious harm hate propaganda causes.
The notwithstanding clause: section 33
The notwithstanding clause lets Parliament or a provincial legislature pass a law that operates despite section 2 or sections 7–15. The override lasts five years and can be renewed. It cannot be used for democratic rights, mobility rights or language rights.
It was a compromise that helped provinces agree to the Charter in 1981–82. Its use is controversial: supporters say elected legislatures should have the final word; critics say it weakens rights protection.
Landmark Charter cases
- R. v. Morgentaler (1988): struck down abortion restrictions as violating security of the person.
- Vriend v. Alberta (1998): sexual orientation is protected under equality rights.
- Reference re Same-Sex Marriage (2004): led to the Civil Marriage Act of 2005.
- Carter v. Canada (2015): struck down the blanket ban on medical assistance in dying.
Indigenous rights
Aboriginal and treaty rights are protected in section 35 of the Constitution Act, 1982, which sits just outside the Charter. Section 25 of the Charter makes sure Charter rights cannot be used to weaken those Indigenous rights.
Try it yourself
- Choose three Charter rights and give a real-life example of each.
- Apply the Oakes test to a school rule, such as a ban on phones in class.
- Debate: "Should governments be allowed to use the notwithstanding clause?"
- Research one landmark Charter case and explain its impact.
Quick recap
- The Charter, part of the Constitution since 1982, protects rights from government action.
- It includes fundamental freedoms and democratic, mobility, legal, equality and language rights.
- Section 1 allows reasonable limits, tested by the Oakes test.
- Section 33, the notwithstanding clause, allows temporary overrides of some rights.
- Indigenous rights are protected by sections 25 and 35.