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In Canada, the Constitution, as well as federal, provincial and territorial laws, protect our human rights and fundamental freedoms.
The Canadian Bill of Rights, passed in 1960, was the first federal human rights law in Canada. It guarantees many basic rights and freedoms, including the "right of the individual to life, liberty, security of the person and enjoyment of property" and the right not to be deprived of any of those rights except in accordance with "due process," meaning basic procedural fairness.
The Canadian Human Rights Act, passed in 1977, also protects human rights in the federal public and private sectors (for example, banking, rail, telecommunications, inter-provincial transportation), particularly the right to equality and non-discrimination in the areas of employment, housing and the provision of services.
All provinces and territories also have human rights legislation which prohibits discrimination in employment, housing and in providing goods, services, and facilities to the public. Some provincial and territorial laws protect a broader range of rights and freedoms. But like any legislation, these laws can be repealed or changed, so their protection can be limited. It was only with the Canadian Charter of Rights and Freedoms that human rights in Canada were protected in the written Constitution.
What does the Canadian Charter of Rights and Freedoms say?
The Constitution says that the Charter takes priority over all other legislation in Canada because it is part of the "supreme law of Canada." It applies to all government action, meaning to the provincial legislatures and Parliament, and to everything done under their authority. This means that governments must take the Charter into account in developing all laws and policies. It also means that when an individual goes to court because he or she believes that Parliament or a legislature or a government official has violated rights or fundamental freedoms guaranteed in the Charter, the court may declare the law invalid if it conflicts with the Charter or provide any other "appropriate and just" remedy.
However, section 1 of the Charter also recognizes that even in a democracy, rights and freedoms are not absolute. For example, no one is free to yell "fire" in a crowded theatre, to slander someone, to engage in religious practices which cause harm to others, to spread child p*rnography or hate propaganda or to enter or leave Canada without any restrictions whatsoever. Parliament or a provincial legislature can limit fundamental rights, but only if it can show that the limit
- is set out in a law; pursues an important goal which can be justified in a free and democratic society; and
- pursues that goal in a reasonable and proportionate manner.
The interests of society must always be balanced against the interests of individuals to see if limits on individual rights can be justified.
The Charter also affirms that we are a multicultural country and that the Charter must be interpreted consistently with this ideal.
Under the Constitution, both Parliament and the provincial legislatures still have a limited power to pass laws that may violate certain Charter rights. However, this can only be done if Parliament or a provincial legislature specifically declare that it is passing a law notwithstanding certain provisions of the Charter. This declaration must be reviewed and re-enacted at least every five years or it will not remain in force. The declaration informs Canadians of the limits being imposed on Charter-protected rights or freedoms. It also requires the government to explain itself, to accept full responsibility for its actions, and to take the political consequences. So far, Parliament has never used the notwithstanding clause.
What rights does the Charter protect?
The Charter protects:
- fundamental freedoms
- democratic rights
- mobility rights
- legal rights
- equality rights
- language rights
It also recognizes and affirms Aboriginal and treaty rights.
Fundamental freedoms
- Everyone in Canada is free to practise any religion or no religion at all.
- We are free to think our own thoughts, speak our minds, to gather peacefully into groups and to associate with whomever we wish, as long as we do not infringe valid laws which protect the rights and interests of others.
- The media are free to print and broadcast news and other information, subject only to reasonable and justifiable limits set out in law.
Democratic rights
- Every Canadian citizen has the right to vote in elections for Members of Parliament and representatives in provincial and territorial legislatures, and to seek election themselves, subject to certain limited exceptions (for example, minimum voting age), which have been found to be reasonable and justifiable.
- Our elected governments cannot hold power indefinitely. The Charter requires governments to call an election at least once every five years. The only exception is in a national emergency, such as war, if two-thirds of the Members of the House of Commons or a legislative assembly agree to delay the election.
- Every citizen has the right to have their elected representatives sit at least once a year in Parliament and legislatures, so Parliament and government are held to account.
Mobility rights
- Canadian citizens have the right to enter, remain in, or leave the country.
- Canadian citizens and permanent residents have the right to live or seek work anywhere in Canada. Governments in Canada can't discriminate on the basis of someone's current or previous province of residence. For example, if a person is a qualified professional, such as an accountant, in one province, another province cannot prevent him or her from working there because that person does not live there.
- However, laws can set reasonable residency requirements for certain social and welfare benefits. Provinces with an employment rate below the national average may also set up programs for socially and economically disadvantaged residents, without having to extend them to non-residents.
Legal rights
Everyone, regardless of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability, is equal before the law.
- The Charter also protects the basic human rights to life, liberty and physical and psychological safety (or "security of the person").
- No one can be deprived of these rights except through fair legal procedures and based on clear, fair laws.
- The right to be presumed innocent until proven guilty is a basic constitutional guarantee.
- The Charter also protects everyone's reasonable expectation of privacy in their homes, private spaces and personal information. This includes protection against unreasonable searches and seizures by police and other government authorities, who generally need a judge-approved warrant to enter your home or take other actions which interfere with your privacy.
- Everyone is also protected against being detained or arrested arbitrarily. A police officer must have reasonable grounds to believe that you have committed a crime before holding you in custody. The right to challenge the legality of your detention (also called "habeas corpus") is expressly guaranteed in the Charter.
- The Charter also protects against random or arbitrary actions by law enforcement agencies. For example, you have the right to be told why you are being arrested or detained, to consult a lawyer without delay, to be informed of this right, and to have a court determine quickly whether this detention is lawful.
- Everyone has the right not to be subjected to any cruel and unusual punishment, including torture, excessive or abusive use of force by law enforcement officials and sentences of imprisonment which are "grossly disproportionate" to the seriousness of the crime committed.
- If you are charged with an offence under federal or provincial law you also have the right:
- to be told promptly of the offence;
- to be tried within a reasonable time;
- not to be compelled to testify at your own trial;
- to be presumed innocent until proven guilty beyond a reasonable doubt in a fair and public hearing by an independent and impartial tribunal;
- not to be denied reasonable bail without cause;
- to be tried by a jury for serious charges;
- to be convicted only for an act or omission that was a crime at the time it was committed;
- not to be tried or punished twice for the same offence;
- to the benefit of the lesser punishment if the punishment for a crime changes between the time you committed the offence and the time you are sentenced;
- Everyone has the right, as a witness in legal proceedings, not to have any incriminating evidence you give used against you in later proceedings, unless you are charged with perjury (lying during legal proceedings).
- Everyone has a right to an interpreter in legal proceedings if you do not understand the language or are hearing-impaired.
Equality rights
Equality rights are at the core of the Charter. They are intended to ensure that everyone is treated with the same respect, dignity and consideration (i.e. without discrimination), regardless of personal characteristics such as race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability, sexual orientation, marital status or citizenship.
- This usually means that everyone should be treated the same by law and that everyone is entitled to the same benefits provided by laws or government policies. However, the Charter does not require that government always treat people in exactly the same way. For example, sometimes protecting equality means that rules or standards must be reasonably adapted to take account of people's differences, including by allowing people to observe different religious holidays without losing their job, or putting specific supports in place to enable people with visual disabilities or hearing impairments to access government services.
- It is also constitutional to create special programs aimed at improving the situation of individuals who are members of groups that have historically experienced discrimination in Canada, including on the basis of the grounds listed above.
Language rights
English and French are Canada's official languages, according to the Charter. Both languages have equality of status and equal rights and privileges to be used in all institutions of Parliament and government of Canada.
- Everyone has the right to use English or French in any debates and other proceedings of Parliament.
- The statutes, records and journals of Parliament must be printed and published in both languages and both language versions have equal authority.
- Everyone has the right to use English or French in proceedings before any court established by Parliament.
- Members of the public have a right to communicate with and receive services in English or French from any head office of an institution of Parliament or government of Canada. They have this same right from any office of an institution where there is a significant demand. Depending on the nature of the office, it might also be reasonable that communications and services be available in both English and French.
- Similar rights apply in New Brunswick, the only officially bilingual province in Canada. In fact, people in New Brunswick have the right to communicate and obtain services in either English or French from any office of an institution of the legislature or government of New Brunswick. Under section 16 of the Charter, the English and French linguistic communities in New Brunswick also have equality of status and equal rights and privileges, including the right to distinct educational institutions and cultural institutions that are needed to preserve and promote those communities.
- The Constitution Act, 1867 and the Manitoba Act also grants people in Quebec and Manitoba the right to use English and French in debates and proceedings of the legislatures and the courts of those provinces. These provisions also require that provincial laws be enacted and published in both languages, and that both languages be used in the Records and Journals of their legislatures.
Minority-language educational rights
- Every province and territory has official language minority communities (French-speaking communities outside Quebec and English-speaking minorities in Quebec).
- Outside Quebec, citizens whose mother tongue is French, or who have attended French primary or secondary schools in Canada, have a constitutional right to have all their children receive primary or secondary instruction in that language. This is also true if their children are, or have, attended French primary or secondary schools in Canada.
- In Quebec, citizens who received their primary education in English in Quebec, or who have a child who was or is being taught in English in Quebec, have the constitutional right to send all their children to English-language schools.
This right to minority-language instruction applies where numbers warrant, and can include the right to receive that instruction in minority-language educational facilities provided out of public funds.
Aboriginal and treaty rights
The Charter and the Constitution protect the rights of the Aboriginal peoples (Indian, Inuit, and Métis) of Canada.
As noted earlier, Section 35 of the Constitution Act, 1982 recognizes and affirms the Aboriginal and treaty rights of Aboriginal peoples.
The Charter cannot take away or diminish those rights, or any other rights or freedoms that Aboriginal peoples may acquire in the future (for example, from the settlement of land claims).
Other rights
The Charter guarantees many basic human rights and fundamental freedoms. But we all have other rights that come from federal, provincial, territorial, international, and common law. Also, Parliament or a provincial or territorial legislature can always add to our rights.
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