The Canadian Charter of

Rights and Freedoms

Judicial Interpretation

CLN4U

Think About it?

What do you think is
meant by the term
Freedom? What does it
mean to you?
What are rights?
How are the two different?

What is a right?
A right is something that has been
granted by statute (an Act passed
by a governing body) or regulation.
What is freedom?
Freedom is the power to act without
unfair interference by an individual
or the state. Freedom is neither
created by law nor is it absolute. It
can be limited by statute if the
limitation is found by the courts to
be justifiable (Section 1).

What does the Charter

describe?
The Charter describes
important rights and
freedoms that belong to all
Canadians. These rights
cannot be taken away by
anyone, not even federal
and provincial
governments.

What is The Charter

of Rights and
The Purpose of the Charter is
Freedoms?
to limit government
The Federal and Provincial
governments are guided by
the Charter in making laws
The Courts are guided by the
Charter in applying laws
Individuals, associations or the
government can ask the courts
to decide how the charter
applies to different situations

Inside the Charter

Fundamental freedoms are civil liberties
that are important to the proper
operation of a liberal democracy. Section
2 of the Charter identifies the
Fundamental Freedoms that we are all
entitled to as Canadian Citizens:

Everyone has the following

fundamental freedoms:
freedom of conscience and religion;
freedom of thought, belief, opinion
and expression, including freedom
of the press and other media of
communication;
freedom of peaceful assembly; and
freedom of association.

Question?
When can an individual be
charged with unlawful
assembly?

Answer!
individuals may be charged with
unlawful assembly if they are part
of a gathering of three or more
persons that is not peaceful or if
they are seen to be part of a group
that is involved in a riot disturbing
the peace tumultuously.

Inside the Charter

The Charter gives
Canadian Citizens the
following types of
rights:

Democratic Rights
Mobility Rights
Equality Rights
Legal Rights
Language Rights

Democratic Rights
Democratic rights regulate the
functioning of the Canadian
democratic system Sections 3-5
The right of every citizen to vote in federal
and provincial elections.
The right of every citizen to qualify for
membership in the House of Commons and
provincial legislatures. (In other words, the
right to run for public office.)
No more than five years may elapse
between general elections for the House of
Commons or provincial legislatures.
In time of real or apprehended war,
invasion, or insurrection, a two-thirds vote
can continue the life the House of Commons
beyond five years.

Mobility Rights
aimed at making it easier for Canadians to
move from one province to another to find
work.
important considering the number of
restrictions provincial governments place on
inter-provincial mobility (i.e. residency
requirements for provincial benefits and hiring
practices favouring current residents).
Section 6 of the Charter provides for the
following rights.
the right to enter, remain in and leave
Canada.
The right to move to and take up residence
in any province; and
The right to pursue the gaining of a
livelihood in any province.

Legal Rights
Legal rights refer to procedural
safeguards designed to protect
people from governmental
abuse under the law. Legal
rights are provided to any
person or entity affected by
provincial or federal authorities.
Legal rights are thus provided
to permanent citizens,
temporary citizens, refugees,
tourists, and even corporations

Sections 7 to 14 of the
Charter guarantee the
following:

the right to life, liberty, and security of person

(except when the deprivation of these rights
is done in accordance with the principles of
fundamental justice),
security against unreasonable search and
seizure,
no arbitrary detention or imprisonment,
to be informed promptly for the reasons for
any arrest or detention,
retain and instruct council or arrest,
trial within a reasonable time by an impartial
tribunal,
the presumption of innocence,
no self-incrimination,
no cruel and unusual punishment, and
the right to a court-appointed interpreter

Equality Rights Section

15:

The Equality rights section of the Charter

was delayed until April 17, 1985 to give
the Provincial Governments time to Update
laws to meet equality requirements.
The Charter States that Every individual is
equal before and under the law
Every person has the right to the equal
protection and equal benefit of the law
without discrimination and, in particular,
without discrimination based on race,
national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
subsection (2) explicitly states that section
15 does not preclude affirmative action
programs that has as their object the
amelioration of conditions of
disadvantaged individuals or groups.

Language Rights
explains that both English and
French are the official
languages of Canada
Canadians have the right to
use either when
communicating with or
receiving services from federal
government offices
Provincial governments must
provide education to Canadian
citizens in the official language
(i.e., French or English) of their
choice

Application of the
Charter
The Charter contains three
clauses that define its
application:
1. Section 32 defines the scope of
the Charter
2. Section 1 allows for violation of
the Charters rights and freedoms
in certain circumstances
3. Section 33 provides for legislative
override of the Charter
The following is an introduction
to each of these application
clauses.

Section 32
Charter only applies to Parliament,
provincial legislatures, and federal
and provincial governments.
the Charter only applies to the
relations between government and
persons.
This includes relations between
persons and the legislative and
executive branches of government,
the public service (bureaucracy,
police, etc), or agencies that exercise
power on behalf of the government
(hospitals, universities, law societies).
This does not, however, include the
courts.
does not apply to relations between
private individuals

Section 1
Section 1 states that the rights
and freedoms guaranteed by
the Charter may be subject to
reasonable limits that can be
demonstrably justified in a
free and democratic society.
In other words, the rights and
freedoms under the Charter can
be violated if the violation is
reasonable and justifiable.
The Supreme Court of Canada
has defined a test for
determining whether a violation
is reasonable and justifiable.

Oakes test
The Oakes test has two key components:
1. Sufficient Importance

The government must show that its objective is

sufficiently important to warrant a violation of a
right or freedom

2. Proportionality

The government must prove that the violation of

the right or freedom is proportionate to its
objective. In showing proportionality, the
government must prove the following:
a. Rational Connection
The violation must be rationally connected to the
objective (it must be necessary to achieve the
governments objective)
b. Minimal Impairment
The violation must minimally impair the right or
freedom (the government did not go overboard in
achieving its objective)
c. Detriments versus Benefits
The detriments of the violation must not outweigh
its benefits (the solution must not be worse than
the problem)

Section 33
Section 33 is the famous
notwithstanding clause of the
Charter.
Under section 33, the federal
Parliament and provincial legislatures
have the ability to declare that a
particular piece of legislation is
notwithstanding or beyond Charter
review.
This ability only applies to the
Charters section 2, sections 7 to 14,
and section 15
Any application of section 33 is only
good for five years. After that time,
the piece of legislation becomes open
to Charter review by the courts.