The Constitution of Canada (La Constitution du Canada in French) is the supreme law in Canada; the country’s constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada’s system of government, as well as the civil rights of all Canadian citizens. The Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982. The Charter guarantees certain political and civil rights of people in Canada from the policies and actions of all levels of government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17th 1982.
The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading.
In practice, there have been three sources of unwritten constitutional law:
Conventions: Constitutional conventions form part of the Constitution, but they are not legally enforceable. They include the existence of the Prime Minister and Parliamentary Cabinet, the fact that the Governor General is required to give assent to Bills, and the requirement that the Prime Minister call an election upon losing a vote of non-confidence.
Royal Prerogative: Reserve powers of the Canadian Crown; being remnants of the powers once held by the British Crown, reduced over time by the Parliamentary system. Primarily, these are the Orders-in-Council which give the Government the authority to declare war, conclude treaties, issue passports, make appointments, make regulations, incorporate, and receive lands that escheat to the Crown.
Unwritten Principles: Principles that are incorporated into the Canadian Constitution by reference from the preamble of the Constitution Act, 1867. Unlike conventions, they are legally binding. Amongst the recognized Constitutional principles are federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Other principles include responsible government, judicial independence and an Implied Bill of Rights. In one case, the Provincial Judges Reference (1997), it was found a law can be held invalid for contradicting unwritten principles, in this case judicial independence.
The concept of an implied bill of rights develops out of Canadian federalism. When provincial legislation intrudes deeply into fundamental freedoms of speech, religion, association or assembly, the provincial legislature is creating criminal legislation, which under the distribution of powers is reserved exclusively to the Parliament of Canada by section 91(27) of the Constitution Act, 1867.
Provinces cannot intrude in this area; if they do, such legislation is void and has no effect.
Under the Charter, persons physically present in Canada have numerous civil and political rights.
The rights and freedoms enshrined in the Charter include:
Fundamental freedoms (section 2), namely freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association.
Democratic rights: generally, the right to participate in political activities and the right to a democratic form of government:
Section 3: the right to vote and to be eligible to serve as member of a legislature.
Section 4: a maximum duration of legislatures is set at five years.
Section 5: an annual sitting of legislatures is required as a minimum.
Mobility rights: (section 6): the right to enter and leave Canada, and to move to and take up residence in any province, or to reside outside Canada.
Legal rights: rights of people in dealing with the justice system and law enforcement, namely:
Section 7: right to life, liberty, and security of the person.
Section 8: right from unreasonable search and seizure.
Section 9: freedom from arbitrary detainment or imprisonment.
Section 10: The right to legal counsel and the guarantee of habeas corpus.
Section 11: rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.
Section 12: Right not to be subject to cruel and unusual punishment.
Section 13: rights against self-incrimination
Section 14: rights to an interpreter in a court proceeding.
Equality rights: (section 15): equal treatment before and under the law, and equal protection and benefit of the law without discrimination.
Language rights: generally, the right to use either the English or French language in communications with Canada’s federal government and certain provincial governments. Specifically, the language laws enshrined in the Charter include:
Section 16: English and French are the official languages of Canada and New Brunswick.
Section 16.1: the English and French-speaking communities of New Brunswick have equal rights to educational and cultural institutions.
Section 17: the right to use either official language in Parliament or the New Brunswick legislature.
Section 18: the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages.
Section 19: both official languages may be used in federal and New Brunswick courts.
Section 20: the right to communicate with and be served by the federal and New Brunswick governments in either official language.
Section 21: other constitutional language rights outside the Charter regarding English and French are sustained.
Section 22: existing rights to use languages besides English and French are not affected by the fact that only English and French have language rights in the Charter. (Hence, if there are any rights to use Aboriginal languages anywhere they would continue to exist, though they would have no direct protection under the Charter.)
Minority language education rights: (Section 23): rights for certain citizens belonging to French or English-speaking minority communities to be educated in their own language.
These rights are generally subject to the limitations clause (section 1) and the notwithstanding clause (section 33). The limitations clause in section 1 allows governments to justify certain infringements of Charter rights. Every case in which a court discovers a violation of the Charter would therefore require a section 1 analysis to determine if the law can still be upheld. Infringements are upheld if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free society, and if the infringement can be “demonstrably justified.” Section 1 has thus been used to uphold laws against objectionable conduct such as hate speech (e.g., in R. v. Keegstra) and obscenity (e.g., in R. v. Butler). Section 1 also confirms that the rights listed in the Charter are guaranteed.
Section 25, which states that the Charter does not derogate existing Aboriginal rights and freedoms. Aboriginal rights, including treaty rights, receive more direct constitutional protection under section 35 of the Constitution Act, 1982.
Section 26, which clarifies that other rights and freedoms in Canada are not invalidated by the Charter.
Section 27, which requires the Charter to be interpreted in a multicultural context.
Section 28, which states all Charter rights are guaranteed equally to men and women.
Section 29, which confirms the rights of religious schools are preserved.
Section 30, which clarifies the applicability of the Charter in the territories.
Section 31, which confirms that the Charter does not extend the rights of legislatures.
Finally, section 34 states that the first 34 sections of the Constitution Act, 1982 may be collectively referred to as the “Canadian Charter of Rights and Freedoms”.
Principles of Criminal liability: conduct, fault, no defence
1. Presumption of innocence
2. Crown has to prove beyond reasonable doubt (civil = balance of probabilities):
1. Conduct (actus reus)
2. Mental fault (mens rea)
3. No defence (i.e. no lawful excuse of justification, such as self-defence)
What if you are questioned by a police officer?
* Call the police officer “officer.”
* Accept the police officer’s authority; do not try to argue.
* Be ready to show identification if a police officer asks you for it. If you are stopped by the police while driving a car, the officer will probably ask you for your driver’s licence, proof of insurance and car registration.
* Tell the officer the facts about what has happened. Do not offer your own opinion.
* Never try to give money to a police officer. Canadians do not bribe police officers. It is a serious crime to do this.
What if you are arrested or detained by a police officer?
* Police officers must tell you who they are and show you their badge number.
* They must explain why they are arresting you and tell you what your rights are.
* They must allow you to call a lawyer right away. If you don’t have a lawyer, they must give you the Legal Aid telephone number and let you call.
* You do not have to give any information, other than your name and address, until you have talked to a lawyer.
A “police officer” means a chief of police or any other police officer, but does not include a special constable, a First nations Constable, a municipal law enforcement officer or an auxiliary member of a police force;