What are my Charter Rights?

The Charter protects civil and political liberties that form the heart of Canadian values. These liberties are characterized as either a right or a freedom.

• A right is a legal claim to something that the state must grant.
• A freedom is an opportunity to do something without state interference.

The following rights and freedoms are protected by the Charter. You can click on the most commonly relied upon rights to get more detailed information on them.

1.  Fundamental Freedoms:

• freedom of conscience and religion (s. 2(a));
• freedom of thought, belief, opinion and expression including freedom of the press (s. 2(b));
• freedom of peaceful assembly (s. 2(c)) ; and
• freedom of association (s. 2(d)).

2.  Democratic Freedoms:

• the right to vote in elections; and
• the right to run for office.

3.  Mobility rights:

• the right to enter, leave and remain in Canada;
• the right move to and gain a livelihood in any province; and
• the right to reside outside Canada.

4. Legal rights:

• the right to life, liberty, and security of the person (s. 7);
• the right to be free from unreasonable search and seizure (s. 8);
• the right to be free from arbitrary detention or imprisonment (s. 9);

• If arrested and/or detained:
  • to be told the reason you are being arrested and/or detained (s. 10(a));
  • to be given the opportunity to retain and instruct a lawyer, and to be told about this right (s. 10(b));
  • to have a prompt hearing laying the charges against you, and to be released if the detention is not legal (s. 10(c));

• On being charged with a crime:
  • to be informed without unreasonable delay of the specific offence (s. 11(a));
  • to be tried within a reasonable time (s. 11(b));
  • not to be compelled to be a witness against yourself (s. 11(c));
  • to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (s. 11(d));
  • not to be denied reasonable bail without just cause (s. 11(e));
  • to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or more (s. 11(f));
  • not to be found guilty for any crime unless it was designated as an office at the time the act was committed (s. 11(g));
  • not to be tried for the same offence more than once (s. 11(h)); and
  • if found guilty of an offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment (s. 11(i)).

• the right not to be subject to cruel and unusual punishment (12);
• the right not to be forced to incriminate  yourself (s. 13); and
• the right to an interpreter of your language in a court proceeding (s. 14).

5. Equality rights:

• the right to equal treatment before and under the law (s. 15); and
• the right to equal protection and benefit of the law without discrimination (s. 15). 

6.  Language rights:

• Generally, the right to use either the English or French language in communications with Canada’s federal government and certain provincial governments; and
• the right for individuals belonging to French or English-speaking minority communities to have their children educated in their primary language.

Reasonable Limits – The Section 1 Proportionality Test

Charter rights and freedoms are not absolute – the government is permitted to impose reasonable limits on them. In all Charter cases, the government is given the opportunity to justify any breach through a mechanism known as the “proportionality test”. The proportionality test is a function of s. 1 of the Charter, which states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section 1 permits a balancing of individual rights and freedoms against valid government objectives and policies. This balancing act is commonly known as the proportionality test. It seeks to locate “reasonable limits” that can be “demonstrably justified in a free and democratic society.”

This has serious implications for any person pursuing a Charter claim. Practically speaking, if you have established that one of your Charter rights have been breached, this is not the end of the story. The government is permitted to justify its actions by relying on section 1. The government successfully justifies its actions in approximately 40% of Charter cases.

The Section 1 Test

The s. 1 test was first explained in the landmark decision of R v Oakes, [1986] 1 SCR 103 and expanded upon in Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835. Before applying the proportionality test, the Court first assesses the government’s objective in enacting the legislation (i.e., the problem the government wants to solve or the reason the government has enacted a particular law). This objective must be sufficiently important (i.e., pressing and substantial) to permit overriding a Charter right or freedom. The more serious the infringement, the more important the objective has to be.
Once this has been determined, the proportionality test is assessed. This has three stages:

1. Is there a “rational connection” between the government’s objective (their goal) and what they have done to achieve that objective? In other words, the government action has to be connected to its objective.
2. Does the government action impair Charter rights as little as possible?
3. Is the effect of limiting the Charter right proportional to the valid objective the government is pursuing?

If the government passes the proportionality test, then the government action is permitted, despite the fact that it infringes on a Charter right. While the burden to satisfy the s. 1 test always lies with the government, you must always expect to deal with the proportionality test if you are pursuing a Charter case.