APPLYING THE CHARTER
YOUR RIGHTS

 What would society be like if we were allowed to do
and say anything we like?
 Irony– there are mechanisms in place to ensure and
protect your rights and freedoms AND there are
mechanisms which restrict those same rights and
freedoms
LIMITATIONS

Section 1- Referred to as the reasonable limits clause
- “Charter of Rights and Freedoms guarantees rights
and freedoms set out in it subject to such reasonable
limits prescribed by law as can be demonstrably
justified in a free and democratic society.”
- Read case study R. v. Oakes page -134-135
- R. v Oakes
- Accused claimed reverse onus provision violated his
rights to be presumed innocent until proven guilty
PROPORTIONALITY TEST

 Courts decide if a law is sufficiently important to
warrant overriding a right or freedom
1. Court will ask if the law relates to societal concerns
which are pressing and substantial in a democratic
society. IF YES, COURT PROCEEDS TO APPLY
PROPORTIONALITY TEST
Proportionality Test

2. Proportionality TestCourt must determine if limitations on rights satisfy
proportionality test (weighing the interests of society
against those of individuals and groups)
3 Parts
a) Is there a rational connection between the
limitation of rights
and objective of the
legislation?
b) Does the limitation impair rights or freedoms as
little as possible?
c) Are the effects of the limitation proportional to the
objective?
Limitations

Section 33 (1)
- Referred to as the “notwithstanding clause”
- Section allowed federal and provincial governments
to override some of the rights and freedoms in the
Charter
- Allows governments to pass legislation that is
inconsistent with the rights set out in s. 2
(Fundamental Freedoms) and ss. 7 to 15 (Legal and
Equality Rights)
Challenges Under the Charter

Section 52(1) of the Constitution
 Called the supremacy clause, and it reads as follows:
“The constitution of Canada is the supreme law of Canada,
and any law inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force
or effect”
 If a law violates a Charter right and cannot be
justified under S.1, the courts may declare the law
unconstitutional
Challenges Under the Charter

 When a court declares a law unconstitutional it can:
1. Strike Down the entire law or particular provision
that is an issue
2. Read Down the legislation if it is interpreted too
broadly and narrow down the understanding of the
law
3. Read in a term so that the legislation will stand and
the court will not have to strike it down
Remedies under the Charter

 Should a court determine that an individual’s rights
has been violated, he or she can apply to the court
for a remedy under Section 24 of the Charter:
 24.(1) Anyone whose rights or freedoms, as
guaranteed by this Charter, have been infringed or
denied may apply to a court of competent
jurisdiction to obtain such remedy as the court
considers appropriate and just in the circumstances.
 24.(2) evidence may be excluded if its collection
violated a right, if admitting it “would bring the
administration of justice into disrepute”
Remedies under the Charter

 If a complaint made in accordance to s. 24(1) is
successful, the court may issue an:
 injunction: Court order requiring a specified party
to take a specific action
 Damages: monetary awards for compensation or
injury
 Stay of Proceedings against the accused under
s.24(2)- all proceedings against the accused will end.