The Canadian Charter of Rights and Freedoms - Hale


The Canadian Charter of

Rights and Freedoms



 Charter is entrenched in the Constitution

 Included as part of the patriation process in 1982

 As a constitutional document, the Charter takes precedence over all legislation

 Over the last 30 years, it has been somewhat common for legislation struck down because it contravenes the Charter

Fundamental Freedoms

 The Charter guarantees four fundamental freedoms

 Religion

 Expression

 Peaceful Assembly

 Association

 These rights apply to everyone

Other rights protected under


Some rights don’t apply to everyone (for example only to citizens)

 Democratic rights

 Mobility rights

 Legal rights

 Equality rights

 Language rights

 Aboriginal and multicultural heritage rights

Can these rights be violated?

 Yes

 There are two legal ways for the government to violate our Charter rights:

 Section 1

 Section 33

Section 1: The Reasonable Limits


“1. 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: The Reasonable Limits




R. v. Oakes established a two-part test, often referred to as the

Oakes test .

Can a limit be justified?

• Is objective of legislation important enough in terms of societal concerns to warrant overriding a right?

Proportionality test

Rational connection between the limitation of rights and the objective of the legislation?

 Aka rational connection

Does the limitation impair rights or freedoms as little as possible?

 Aka minimal impairment

Are the effects of the limitation proportional to the objective?

Section 33: The Notwithstanding


 33.

(1) Parliament or the legislature of a province may expressly declare in an Act of

Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this


Section 33: The Notwithstanding


 Basically: a Provincial legislature can pass a law that is inconsistent with the Charter

 Legislation must be reviewed every 5 years

 Open to great use, but used very rarely:

 Quebec (language laws)

 Saskatchewan (back-to-work legislation in 1986)