The Canadian Charter of Rights and Freedoms (French: Charte canadienne des droits et libertés), often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and guarantees the civil rights of everyone in Canada. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was proclaimed in force by Queen Elizabeth II of Canada on April 17, 1982, as part of the Constitution Act, 1982.
The Charter was preceded by the Canadian Bill of Rights, enacted in 1960, which was a federal statute rather than a constitutional document. The Bill of Rights exemplified an international trend towards formalizing human rights protections following the United Nations' Universal Declaration of Human Rights, instigated by the country's movement for human rights and freedoms that emerged after World War II. As a federal statute, the Bill of Rights could be amended through the ordinary legislative process and had no application to provincial laws. The Supreme Court of Canada also narrowly interpreted the Bill of Rights, showing reluctance to declare laws inoperative. Between 1960 and 1982, only five of the thirty-five cases concerning the Bill of Rights that were heard by the Supreme Court of Canada resulted in a successful outcome for claimants. The relative ineffectiveness of the Canadian Bill of Rights motivated many to improve rights protections in Canada. The British Parliament formally enacted the Charter as a part of the Canada Act 1982 at the request of the Parliament of Canada in 1982, the result of the efforts of the government of Prime Minister Pierre Trudeau.
The Charter greatly expanded the scope of judicial review, because it is more explicit in its guarantee of rights and the role of judges in enforcing them than was the Canadian Bill of Rights. Canadian courts, when confronted with violations of Charter rights, have struck down unconstitutional federal and provincial statutes and regulations or parts of statutes and regulations, as they did when Canadian case law was primarily concerned with resolving issues of federalism. The Charter, however, granted new powers to the courts to enforce remedies that are more creative and to exclude more evidence in trials. These powers are greater than what was typical under the common law and under a system of government that, influenced by Canada's parent country the United Kingdom, was based upon Parliamentary supremacy. As a result, the Charter has attracted both broad support from a majority of the electorate and criticisms by opponents of increased judicial power. The Charter applies only to government laws and actions (including the laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to the common law, not to private activity.
Features
Under the Charter, people physically present in Canada have numerous civil and political rights. Most of the rights can be exercised by any legal person (the Charter does not define the corporation as a "legal person"), but a few of the rights belong exclusively to natural persons, or (as in sections 3 and 6) only to citizens of Canada. The rights are enforceable by the courts through section 24 of the Charter, which allows courts discretion to award remedies to those whose rights have been denied. This section also allows courts to exclude evidence in trials if the evidence was acquired in a way that conflicts with the Charter and might damage the reputation of the justice system. Section 32 confirms that the Charter is binding on the federal government, the territories under its authority, and the provincial governments.
Exceptions
Section 1 of the Charter, known as the limitations clause, allows governments to justify certain infringements of Charter rights. If a court finds that a Charter right has been infringed, it conducts an analysis under section 1 by applying the Oakes test, a form of proportionality review. Infringements are upheld if the government's objective in infringing the right is "pressing and substantial" in a "free and democratic society", and if the infringement can be "demonstrably justified". The Supreme Court of Canada has applied the Oakes test to uphold laws against hate speech (e.g., in R v Keegstra) and obscenity (e.g., in R v Butler). Section 1 also confirms that the rights listed in the Charter are guaranteed.
In addition, some Charter rights are subject to the notwithstanding clause (section 33). The notwithstanding clause authorizes governments to temporarily override the rights and freedoms in sections 2 and 7 through 15 for up to five years, subject to renewal. The Canadian federal government has never invoked it, and some have speculated that its use would be politically costly. In the past, the notwithstanding clause was invoked routinely by the province of Quebec (which did not support the enactment of the Charter but is subject to it nonetheless). The provinces of Saskatchewan and Alberta have also invoked the notwithstanding clause, to end a strike and to protect an exclusively heterosexual definition of marriage, respectively. In 2021, the government of Ontario under Premier Doug Ford invoked the notwithstanding clause in order to push through Bill 307, the Protecting Elections and Defending Democracy Act, doubling the amount of time election advertisements could run to 1 year from 6 months. In 2006, the territory of Yukon also passed legislation that invoked the notwithstanding clause, but the legislation was never proclaimed in force.
Rights and freedoms
The rights and freedoms enshrined in 34 sections of the Charter include:
Fundamental freedoms
Section 2
lists what the Charter calls "fundamental freedoms" namely freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association. In case law, this clause is cited as the reason for the religious neutrality of the state.
Democratic rights
Generally, the right to participate in political activities and the right to a democratic form of government are protected:
Section 3
the right to vote and to be eligible to serve as member of the House of Commons and provincial and territorial legislative assemblies.
Section 4
the maximum duration of the House of Commons and legislative assemblies is set at five years.
Section 5
an annual sitting of Parliament and legislatures is required.
Mobility rights
Section 6
protects the mobility rights of Canadian citizens which include the right to enter, remain in, and leave Canada. Citizens and permanent residents have the ability to move to and take up residence in any province to pursue their livelihood.
Legal rights
Rights of people in dealing with the justice system and law enforcement are protected:
Section 7
right to life, liberty, and security of the person.
Section 8
freedom from unreasonable search and seizure.
Section 9
freedom from arbitrary detention or imprisonment.
Section 10
right to legal counsel and the guarantee of habeas corpus.
Section 11
rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.
Section 12
right not to be subject to cruel and unusual punishment.
Section 13
rights against self-incrimination.
Section 14
right to an interpreter in a court proceeding.
Equality rights
Section 15
equal treatment before and under the law, and equal protection and benefit of the law without discrimination.
Language rights
Generally, people have the right to use either the English or French language in communications with Canada's federal government and certain provincial governments. Specifically, the language laws in the Charter include:
Section 16
English and French are the official languages of Canada and New Brunswick.
Section 16.1
the English and French-speaking communities of New Brunswick have equal rights to educational and cultural institutions.
Section 17
the right to use either official language in Parliament or the New Brunswick legislature.
Section 18
the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.
Section 19
both official languages may be used in federal and New Brunswick courts.
Section 20
the right to communicate with and be served by the federal and New Brunswick governments in either official language.
Section 21