The Charter of Rights and Freedoms

The Charter of Rights and Freedom came into effect on April 17, 1982 (some sections, i.e. sections 15 & 16, were added after this date). Before the charter was introduced, there was the Canadian bill of rights in its place which included many of the same rights that the charter contains; however, the only difference is that it wasn’t a part of the constitution. The Canadian Charter of Rights and Freedoms consists of the rights and freedoms that Canadians believe are required in a free and democratic society. The Charter is indeed one part of the Canadian Constitution and the Constitution is a set of laws containing basic rules about how Canada operates. Because of the fact that the Charter is a part of the Canadian constitution, it is a part of the supreme law of Canada. This means that all other laws must be consistent with the constitution however, the Charter of Rights and Freedoms doesn’t have to be. The laws within this charter can be limited to protecting other rights or important national values. For example, freedom of expression may be limited by laws against hate speech. The charter protects any individual in Canada (citizen, permanent resident, or newcomers) however, some aspects of the charter are limited to only Canadian Citizens, such as the right to vote.

The Rights and Freedoms Protected by the Charter

Following a brief preamble, section 1 of the Charter asserts that while the rights and freedoms described throughout the Canadian Constitution are guaranteed by all levels of government, “reasonable limits prescribed by law can be demonstrably justified in a free and democratic society.” Hence, courts are permitted to uphold statutes that restrict rights and freedoms in the process of protecting national values or Charter violations against third parties, such as when citizens are prosecuted for hate speech, despite the judicial remedy in section 24 for Charter violations committed against individuals. This reasonable limits clause inherent to section 1, thanks to the subjectivity of terms such as “reasonable,” “prescribed by law” and “justified,” is among the most litigated segments of the Constitution, giving rise to precedents and tests such as the Oakes test that fall beyond the scope of this discussion. See “Acquittal After Supreme Court Trial” on the Next Gen Litigators Instagram and Medium pages to learn how legal principles and tests function in court.

Section 2 of the Charter is a litany of fundamental freedoms granted to citizens and non-citizens organized into four subsections, namely:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

It should be noted here that these fundamental freedoms are granted subject to not just the “reasonable limits” of section 1, but to the override power of the legislative written in a section to be analyzed later.

Democratic rights and mobility rights, sections 3 through 5 and section 6 respectively, are the only Charter rights granted exclusively to citizens of Canada. These sections concern voting rights, the maximum duration of legislative bodies, and the right to run for public office, in addition to the right to enter, remain in, and leave Canada.

Much like the fundamental freedoms of section 2, the legal rights of sections 7 to 14 overlap considerably with a federal statute enacted over twenty years before the Charter, in a document called the Canadian Bill of Rights [1960]. It is important to remember that at the time of negotiations over the Charter’s drafting, concerns were shared amongst some civilians and members of parliament of the executive branch’s power to suspend civil liberties, as exercised by the Prime Minister during the October Crisis of 1970. Sections 1 through 14 of the Charter thus state in no uncertain terms protections against unreasonable search and seizure, unreasonable laws, arrest without good reason, and other forms of unfair treatment, as well as the right to legal representation and rights in court.

Equality rights, section 15 of the Charter, are eloquently summarized by the Government of Canada as such: “every individual in Canada — regardless of race, religion, national or ethnic origin, colour, sex, age or physical or mental disability — is to be treated with the same respect, dignity and consideration.” The judicial branch also prohibits discrimination on the grounds of sexual orientation, marital status, and citizenship, protected classes that were not ratified in the text of the Charter, yet also are entitled to equal protection and benefit under Canadian law.

Sections 16 to 22 concern the official languages of Canada, English and French, and their equal status “in all institutions of the Parliament and Government of Canada.” Special mention is given to the bilingual character of the province of New Brunswick, entrenching an obligation to record “statutes, records, and journals of the legislature” in both official languages. Official language rights are inalienable, meaning that no future act of Parliament can revoke sections 16 to 22.

Of sections 23 to 34, which conclude the Charter by largely describing how it should be interpreted and applied, section 33 sparks controversy to this day for the breadth of the “override power” previously mentioned. As a compromise during constitutional negotiations between the Cabinet of Canada and representatives of the country’s provincial legislatures, section 33 establishes the ability of lawmakers to declare that a statute operates “notwithstanding” of the Charter’s fundamental freedoms, legal rights, or equality rights. In other words, if a given law invokes a so-called notwithstanding clause, individuals are not permitted to bring forth Charter challenges on the basis of the aforementioned rights and freedoms for five years following the invocation of the clause. Statutes invoking section 33 are currently active in two provinces.

Criminal Code

The Criminal Code is a statute of the Parliament of Canada that codifies most criminal offences and procedures in Canada. Since 1892, no less than seven subsequent documents have contributed to the statute in its current form; that the law is referred to as a “code” reinforces this consolidation of criminal law procedure. Indeed, while most of Canada’s criminal law is contained in the Criminal Code, criminal law can be found in other federal statutes, such as the Controlled Drugs and Substances Act. The code’s primary function is to define the types of conduct that constitute criminal offences, establish the degree of punishment that may be imposed for an offence, as well as the procedures to be followed for prosecution, whether administered by federal institutions or provincial institutions, such as the courts or police service.

Amendments to the Criminal Code:

The Criminal Code of Canada was originally enacted in 1892. It has never been revised; though there were consolidations in 1906,1927 and 1953. Most importantly, the 1953 reenactment of the Code abolished common law offences and any offence created by Britain’s Parliament. The Criminal Law Amendment Act, 1968–69 or Bill C-150 introduced major changes to the Code (decriminalising homosexuality, allowed abortion under certain conditions & birth control). Amendments to the Code have been made almost yearly to keep up with technological, social and economic changes in society. It is interesting to note that the 1971 Law Reform Commission of Canada which took a systematic review of Canadian Law, disbanded in 1992, is now reconstituting it as the Federal Elections come up, as the Law Commission of Canada (newer name) that can significantly amend the Criminal Code.

The 1996 Amendment, taken under the Law Commission of Canada, responded to how the Criminal Code failed to reflect attitudes of the Majority of Canadians and significantly amended the Code regarding Sentencing. It began by considering how crime affects the individual victim, rather than a wrong against a community as considered by criminal law. Victims took to court on how crimes have affected them personally and this gave judges more insight into how punishment should be considered. The changes to the Code also allowed courts to play a more active role in the rehabilitation of the individual offender, where alternatives to sentencing are more readily enforced. Also enacted in 1996, was “Conditional Sentences” that allowed convicted offenders to serve sentences in the community on the basis of supervision. The new sentencing provisions are designed to respond to the new point of view that the interests of victims of crime should have a stronger place when an offender’s sentence is decided. It is also recognized that prison should be something of a last resort

Parts of the Criminal Code

The first part of the Criminal code are enactments of general principles grouped under different categories: offences against the person, offences against property, offences against administration of law and justice, sexual offences, currency offences and conspiracies. The rest of the criminal code are the punishments, in which 40% deal with procedure and the remaining 60% deal with definitions of criminal law offences, codifications to defences available to criminal charges and sentencing options available to judges.

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