What you should know
The Charter of Rights and Freedoms is part of Canada’s Constitution and protects a broad range of rights and freedoms. Among the rights guaranteed by the Charter are a number of legal rights. Several are aimed at ensuring anyone accused of a crime is treated in a just and fair manner. Some apply to witnesses who testify in court proceedings.
Some of these rights existed long before the Charter. Some added to or improved the rights Canadians enjoyed before the Charter became law in 1982.
The legal rights in the Charter most often apply in criminal cases. They can also come into play when people deal with government agencies.
Everyone has the right to life, liberty and security of the person, and the right not to be deprived of these things except in accordance with the “principles of fundamental justice."
Section 7 of the Charter protects more than just the right to physical liberty — the right not to be held against your will without proper process. It also protects the right to be free from physical assault and interference, and the threat of these things. The Charter protects conduct that people are free to pursue. If the government interferes with your liberty or security, it must follow fair laws and procedures.
For example, if a law said you can be sent to jail for six months if your spouse commits robbery, a court could potentially rely on section 7 to strike down this law. The court could say the law takes away your liberty (as you could go to jail) and does not follow the principles of fundamental justice — one of those principles being that you must be personally responsible for a crime to be convicted; it is not enough just to know someone who did the crime.
The right to remain silent
An important right under section 7 is the right to remain silent if you are suspected of a crime. The police cannot force you to answer their questions, but they may continue to ask questions even if you say you do not want to answer.
Although the Charter gives a broad right to remain silent, under some laws, you may be required to identify yourself or give some information — for example, if you are crossing a border into Canada or driving a vehicle stopped by the police.
In some cases, the police may not be clear about a person’s obligation to answer questions. If there’s uncertainty, you should ask the officer if you must answer the questions. Refusing to identify yourself to the police can sometimes create problems. For example, if you won’t identify yourself and do not have identity documents, the police might detain you to learn your true identity. One option is to give your name and date of birth but nothing more, unless the officer says you have a legal duty to give more information.
Everyone has the right to be secure against unreasonable search or seizure. Section 8 of the Charter controls the laws that allow police to search your home or place of business, your phone or computer, your car, or even you, in certain cases. It also controls the actions of individual police officers.
Before police can search or seize, they must have a good reason to do so. For example, if the police suspect you have stolen cellphones, they cannot just enter your apartment and search you and your rooms. The police can go to court to get a search warrant, explaining their reasons. If the court agrees those reasons are sufficient, they can issue a warrant authorizing the search.
Section 8 does not protect your privacy in all cases. It depends on the context. Courts focus on the person’s expectation of privacy in the place, thing, or information at issue. For example, if you leave property at a friend’s house or put garbage out on the sidewalk for pickup, you don’t have a reasonable expectation of privacy in those places. On the other hand, if you password-protect your personal computer at your home, you have a strong expectation of privacy.
Everyone has the right not to be arbitrarily detained or imprisoned. Something is arbitrary if there is no good reason for it. Being detained is when you are kept somewhere you don’t want to be.
The Criminal Code and other laws set out when someone can be detained or arrested. Those laws must be consistent with section 9 of the Charter. For example, police can only detain you if there are reasonable grounds (good reasons) to suspect you are connected to a crime. If police arrest you, you must be brought before a justice of the peace (a court officer who deals with process matters) as soon as possible — normally within 24 hours — to see if you can be released from custody. The police cannot hold you in custody without justifying this is needed.
Another example: let’s say the police stop you as you walk along the sidewalk. If the police reasonably believe you are connected to a crime, they have a legal power to stop (that is, detain) you to ask questions. If the police have reasonable grounds to arrest you for committing a crime, they can arrest you. But if the police are just making conversation, you can ask the police whether you are free to go. If the answer is no, you are being detained, and you could ask the police what legal authority they are relying on to detain you.
Everyone, if police arrest or detain them, has the right to be informed promptly of the reasons for the arrest or detention.
You also have the right to speak to a lawyer immediately — before the police question you — and to be told you have that right. The police must give you privacy and a way to exercise your right to call a lawyer.
Section 11 puts several fundamental principles of Canadian criminal law into the Charter. It controls how a person charged with an offence is treated in a criminal case. Some of these rights, such as the right to be presumed innocent until proven guilty, and the right not to be a witness against yourself, existed long before the Charter. One important right with a powerful effect under the Charter is the right to a trial within a reasonable time. Another is the right to be informed of the specific offence you are charged with, without unreasonable delay.
Section 11 also gives a person charged with an offence the right to reasonable bail unless there is just cause (a good reason) to deny it. Section 11 provides a right to trial by jury if an offence can be punished with jail for five years or more (the Criminal Code also gives a right to trial by jury for some other serious offences).
Everyone has the right not to be subjected to cruel and unusual treatment or punishment. When courts decide whether treatment or punishment is cruel and unusual, they often ask if it is so harsh that it shocks the conscience of the Canadian public. Torture is an example of cruel and unusual treatment.
At a criminal trial, the accused person can decide whether to testify (give evidence under oath) in their own defence. Other people generally cannot refuse to testify: they must do so if they receive a subpoena (a document ordering them to come to court and give evidence). If they refuse to testify, they can be charged with contempt of court. And anyone who lies in their testimony (the evidence they give) can be charged with perjury (lying under oath).
If a witness at the criminal trial of another person is asked about their own involvement in criminal activity, they must answer honestly. But a prosecutor cannot use their answers against them. Section 13 of the Charter says testimony from a witness showing they committed criminal activity cannot be used against them to prove they are guilty of that criminal activity.
That said, a prosecutor can use a witness’s answer to show they are lying under oath (committing perjury) in that case, or in a later case if they are charged and deny the criminal activity.
These legal rights are not absolute. The Charter itself recognizes that some laws might violate the Charter yet be justifiable in the broader public interest. Where a law violates a Charter right, a government can try to justify the violation as a reasonable limit under section 1 of the Charter. Under that section, a reasonable limit needs to be “prescribed by law” and “demonstrably justified in a free and democratic society."
If a government tries to rely on section 1 to justify a Charter violation, a court can decide if the violation is a reasonable limit. The court will look at whether the law has an important objective, and whether the government chose a proportionate way to meet that objective — a way that interferes as little as possible with Charter rights. For example, could the government achieve its objective in another way, without violating Charter rights? Does the law do more harm than good?
Section 1 applies only to written laws. It does not apply to government actions. An example of a government action would be the conduct of a police officer in making an arrest. Where a government action violates the Charter, section 1 does not let the government try to justify the violation. The action is unconstitutional. Lawyers call this a Charter breach.
The Charter gives courts lots of discretion about the remedy they can order if a Charter right is violated. A remedy is a court order to give someone their legal rights or to compensate them for their rights not being respected.
Section 24 of the Charter allows a person whose rights have been violated to apply to a court for a remedy the court considers appropriate and just in the circumstances. In some cases, a broad remedy may be necessary, such as declaring that a law is unconstitutional. This is often referred to as ”striking down a law." For example, if the government passed a law giving sweeping power for police to search vehicles, the court could decide to strike down the law as violating the Charter right to be secure against unreasonable search. In this way the remedy helps everyone affected by the law.
In other cases, an individual (personal) remedy is ordered. For example, if the right to a trial within a reasonable time has been denied, and it is no longer possible for a person to properly defend themselves, the court may “stay” (terminate) the charges against that person. That means the trial won’t proceed and the person won’t be convicted.
A court may exclude (not allow) evidence if it was obtained in a way that interfered with a Charter right. But a court will exclude evidence only if the accused person can show that using the evidence would bring the administration of justice into disrepute.
This information applies to British Columbia, Canada
Reviewed in July 2018
Time to read: 9 minutes