The Charter of Rights and Freedoms was enacted in 1982. It became part of the Constitution Act, so it applies to all laws and governments in Canada.
The charter provides Canadians with the guarantee of a number of freedoms and rights, which are broken down into seven different categories. These include:
• Fundamental freedoms such as the freedom of expression, religion and association;
• Democratic rights, which includes the right to vote and serve as a member of legislature;
• Mobility rights, which includes the right to enter and leave Canada and to live in any province;
• Legal rights, such as the right from unreasonable search and seizure, arbitrary imprisonment, right to legal counsel and right not be subject to cruel and unusual punishment;
• Equality rights, which protects our right to equal protection and benefit of the law without discrimination;
• Language rights, which, generally, is the right to use either English or French when communicating with the federal and certain provincial governments; and
• The right for French or English-speaking minority communities to be educated in their own language.
However, these rights are not absolute. They are subject to "such reasonable limits prescribed by law as it can be demonstrably justified in a free and democratic society." This phrase was extensively looked at in the case of R. vs. Oakes, where the Supreme Court of Canada came up with a test to determine if a law meets this criterion when it is limiting one of our freedoms or rights.
The test they determined is as follows:
1. There must be a pressing and substantial objective to the law and 2. The means in which the rights are limited must be proportional. This second step is broken down into three further steps which are (a) the means must be rationally connected to the objective, (b) there must be minimal impairment of rights and (c) there must be proportionality between the infringement and objective.
If a law meets this test, then our rights and freedoms are able to be limited by it.
So, for example, while you do have the freedom to express your beliefs, you are not able to express them in a manner that is threatening to another person (as it’s against the law to utter threats) and you are not able to vandalize other people’s property while expressing these beliefs.
Another example of where the Oakes test was applied and the courts determined the law was valid is police checkstops. Technically, a police checkstop for drunk drivers would be considered a breach of our right to unreasonable search and detainment (police must have a right to search your property or detain you), but the courts said this practice is acceptable and not a breach of our rights because the pressing objective of the checkstops and minimal impairment of our rights.
Thus, while the Charter of Rights and Freedoms does provide us with a number of rights to protect us from governments creating unreasonable laws, these rights are limited to an extent and we need to be aware of this limitation.
» Breena Murray is a lawyer with Paterson, Patterson, Wyman and Abel, with offices in Brandon, Neepawa and Virden.
Republished from the Brandon Sun print edition August 18, 2012