Rights and Freedoms in Canada
In Canada, both federal and provincial or territorial governments protect the individual’s rights and freedoms. The territorial governments may also legislate to protect human rights, since the federal government has delegated those powers to them.
The Canadian Bill of Rights, passed in 1960, was the first federal law that specifically set out fundamental human rights for Canadians. The Canadian Human Rights Act (CHRA), first enacted in 1977, also protects human rights, particularly in the areas of employment, housing and commercial premises. Unlike the Canadian Bill of Rights, the CHRA applies not only to the federal government but also to the private sector in matters that are regulated directly by the federal government, such as banking.
All provinces and territories also have human rights legislation to prohibit discrimination on various grounds with regard to employment and the provision of goods, services and facilities. The Québec Charter of Human Rights and Freedoms, passed in 1975, protects all fundamental human rights as well as some political, social and economic rights. In addition, Saskatchewan and Alberta enacted bills of rights in 1947 and 1972, respectively. This legislation applies to discrimination both by individuals in the private sector and by provincial or territorial governments.
Nevertheless, the protection provided by all of this legislation is limited. Because the Canadian Bill of Rights, the CHRA, and all provincial human rights codes are only legislation, it is possible to repeal them. It was not until the advent of the Canadian Charter of Rights and Freedoms that human rights in Canada were protected in the Constitution.
The role of the Canadian Charter of Rights and Freedoms
When the Constitution was patriated in 1982, the Canadian Charter of Rights and Freedoms became a fundamental part of it. The Charter takes precedence over other legislation because it is “entrenched” in the Constitution, the supreme law of Canada. It applies to the provincial legislatures as well as to Parliament. This means that when an individual who believes that Parliament or a legislature has violated guaranteed rights asks the courts for help, the courts may declare the law invalid as far as it conflicts with the Charter. In addition, courts may provide other appropriate remedies to individuals whose rights have been violated or infringed.
However, the Charter also recognizes that even in a democracy rights and freedoms are not absolute. For instance, freedom of expression is guaranteed, but no one is free to yell “fire” in a crowded theatre, to slander someone, or to spread hate propaganda. Therefore, Parliament or a provincial legislature can limit fundamental rights, but only if that government can show that the limit is reasonable, is prescribed by law, and can be justified in a free and democratic society. The interests of society must be balanced against the interests of individuals to see if limits on individual rights can be justified.
The Constitution affirms that we are a multicultural country and that Charter rights must be interpreted consistently with this ideal.
Under the agreement between the federal and provincial governments that resulted in the Constitution Act, both Parliament and the provincial legislatures keep some limited power to pass laws that may violate Charter rights. This is democratic because it gives the elected legislatures the last word. However, their power is still limited because Parliament or a provincial legislature must specifically declare that it is passing a law “notwithstanding” specified provisions of the Charter. This declaration must be reviewed and re-enacted at least every five years or it will not remain in force. These limits act as a kind of warning to Canadians, and force the government to explain itself, to accept full responsibility for its actions, and to take the political consequences.
What rights does the Charter protect?
The Charter protects fundamental freedoms, democratic rights, the right to move from one province or territory to another in Canada, legal, equality and language rights, and Aboriginal rights.
The Charter gives constitutional protection to freedoms that custom and law over the years had made almost universal in our country. Everyone in Canada has a right to practise any religion or no religion at all. We are free to speak our minds, to gather peacefully into groups and to associate with whomever we wish, as long as we do not infringe the legal and constitutional rights of others. The freedom of the media to print and broadcast news and other information is guaranteed as well under the Charter.
The Charter also guarantees our democratic tradition. Canadian citizens have a constitutional right to vote in elections for Members of Parliament and representatives in provincial and territorial legislatures, and to seek election themselves. A few restrictions – such as those on minors and the mentally incapacitated, or on election officials, who may have to cast a deciding ballot on a citizen’s right to vote or to run in an election – have been found to be reasonable in a democratic society. Another protection of democracy is that 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 Parliament or a legislature agrees to delay the election.) The Charter also specifies that Parliament and legislatures must sit at least once a year. This ensures that our governments do the work for which they were elected, and that they have to answer questions and explain themselves in public.
Canadian citizens have the right to enter, remain in or leave the country. Citizens and permanent residents have the constitutional right to live or seek work anywhere in Canada, including the right to live in one province and work in another. The Charter stops provinces and territories from discriminating against newcomers. 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, provinces can make a residency requirement for certain social and welfare benefits. Provinces with an employment rate below the national average may set up programs for socially and economically disadvantaged residents as well.
The Charter also protects the individual and ensures fairness during legal proceedings, particularly in criminal cases. The rights to habeas corpus, or the right to challenge being detained or held, and to be presumed innocent until proven guilty – always recognized as part of our law – are now guaranteed in our constitution.
No one can be deprived of the right to liberty and security of his or her person except through proper legal procedures. Canadians are protected against unreasonable searches and seizures, and against police using excessive force, even when a search or seizure is authorized by law. We are also protected against being detained or arrested arbitrarily. In other words, a police officer must have a reasonable suspicion that we have committed a crime before holding us in custody.
The Charter also protects us against arbitrary actions by law enforcement agencies. It guarantees our rights to be told why we 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 the detention is lawful.
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,
- not to be subjected to any cruel and unusual punishment,
- to be tried by a jury for serious charges, and
- not to be tried or punished twice for the same offence.
Any witness, as well as the accused, at trial has the right to an interpreter if he or she does not understand the language or is hearing-impaired. Witnesses also have the right not to have incriminating evidence used against them in later proceedings.
Everyone, regardless of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability, is equal before the law and has equal protection and benefit of the law. This means that laws and government programs, such as pension plans, must not be discriminatory.
The Charter does not require that all people always have to be treated in exactly the same way. For example, it is constitutional to create special programs for individuals or groups who may be at a disadvantage in society, such as women, visible minorities or people with disabilities.
English and French are Canada’s official languages, according to the Charter. Both languages have equal status and equal rights and privileges in Parliament and the Government of Canada. In addition, everyone has the right to use English or French in the debates and proceedings of Parliament, and all statutes and parliamentary records and journals must be printed and published in both languages. Everyone has the right to use English or French in proceedings before any court established by Parliament. Moreover, members of the public have a right to communicate with and receive services in English or French from the central offices of federal institutions and from other federal offices where there is a significant demand in either language or where it is reasonable.
The same conditions apply on the provincial level in New Brunswick, the only province which is officially bilingual under the Charter. The public has the same right to services in English or French from all offices of New Brunswick legislative and governmental institutions.
The Constitution Act of 1867 and the Manitoba Act in 1870 gave people in Quebec and Manitoba , respectively, the right to use English and French in debates and proceedings of the legislatures, in the courts of those provinces, and require that provincial laws be enacted and published in both languages. The Charter preserves these rights and obligations.
Minority-language educational rights
In the predominantly English-speaking provinces and all the territories, citizens whose mother tongue is French or who attended French-language primary schools, or whose child has or is receiving primary or secondary school instruction in French, have a constitutional right to send all their children to French-language schools. In Quebec, citizens who received their primary education in English, or who have a child who was or is being taught in English, have the constitutional right to send all their children to English-language schools.
This right to minority-language instruction applies wherever there are enough other children in the same situation to warrant the provision of such instruction, and includes the right of those children to receive their education in minority-language schools and educational facilities.
A number of provisions in the Charter, and elsewhere in the Constitution, specifically protect the rights of the Aboriginal peoples (Indian, Inuit, and Métis) of Canada. These provisions
- recognize and protect the Aboriginal and treaty rights of Aboriginal peoples and
- help Aboriginal peoples preserve their cultures, identities, customs, traditions and languages.
The Charter specifically states that the rights and freedoms it guarantees cannot be used to take away any rights that Aboriginal peoples now have or may acquire in the future (for example, from the settlement of land claims).
The Charter does not embody all our rights as Canadians; it only guarantees basic minimum rights. We all have other rights derived from federal, provincial, territorial, international and common law. Similarly, Parliament or a provincial or territorial legislature can always add to our rights.
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