RE: Canadian Charter of Rights and Freedoms

 January 28, 1998 98-R-0143

TO:

FROM: Sandra Norman-Eady, Senior Attorney

You asked for a summary and a copy of the Canadian Charter of Rights and Freedoms. You also wanted to know if the charter is similar to our Bill of Rights.

SUMMARY

The Canadian Charter of Rights and Freedoms, which was adopted in 1982, guarantees the rights and freedoms set out in it subject to reasonable limits prescribed by law. The charter guarantees such rights as the right to equality, democracy, and mobility. The freedoms include those of conscience, religion, and peaceful assembly.

The charter applies to (1) the Parliament and Canadian government in respect to all matters within the Parliament's authority, including all matters relating to the Yukon and Northwest Territories and (2) provincial legislatures and governments in respect to all matters within the legislature's authority. But Parliament or a province's legislature may expressly declare in an act that the act may operate despite a provision in the Charter regarding fundamental freedoms or legal rights. An act with such a declaration is effective for five years or the date specified within the declaration, whichever is sooner.

Anyone whose Charter rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain whatever remedy the court considers appropriate and just. A court must exclude any evidence that was obtained in a manner that infringed or denied any rights or freedoms under the charter if it is established, after reviewing all of the evidence, that the admission would bring the administration of justice into disrepute.

The first 10 amendments to the federal constitution, all of which were adopted in 1791, are generally referred to as the Bill of Rights. The Canadian Charter or Rights and Freedoms is the equivalent to our Bill of Rights. Both guarantee the right to freedom of speech and the press, peaceably assemble, travel, due process, privacy, an attorney and speedy trial in criminal cases, and trial by jury in certain cases. Two very obvious differences between the two documents are that the Canadian charter does not guarantee citizens the right to bear arms and the federal constitution does not declare any language as the official language of the United States.

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

The charter guarantees rights equally to males and females. It must be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians and not construed to abrogate or derogate from any (1) aboriginal, treaty, or other rights or freedoms that pertain to the aboriginal people of Canada or (2) rights or privileges guaranteed by or under the Canadian Constitution with respect to denominational, separate, or dissentient schools.

Fundamental Freedoms

The charter guarantees everyone the freedom of conscience and religion; thought, belief, opinion, and expression, including freedom of the press and other means of communication; peaceful assembly; and association.

Democratic Rights

Every Canadian citizen has the right to elect members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Mobility Rights

Every Canadian citizen has the right to enter, remain in, and leave Canada. These citizens and every permanent resident of Canada has the right to move to, take up residence in, and pursue a livelihood in any province. The latter right is subject to (1) any laws or practices of general application in force in the province other than those that discriminate on the basis of present or previous residence and (2) any laws that establish reasonable residency requirements as a condition for receiving social services. The right to pursue a life in any province does not preclude any law, program, or activity designed to ameliorate social or economic disadvantages facing individuals in a province if the rate of employment is below that in Canada.

Legal Rights

Everyone has the right to life, liberty, and security. No one can be deprived of these rights except in accordance with the principles of fundamental justice. Additionally, everyone has the right:

1. to be secure against unreasonable search or seizure;

2. not to be arbitrarily detained or imprisoned;

3. not to be subjected to any cruel or unusual treatment or punishment;

4. on arrest or detention, to (a) be informed promptly of the reason; (b) be informed of the right to retain, and to actually retain and instruct counsel without delay; and (c) to have the validity of the detention determined by habeas corpus and released if the detention is unlawful.

Anyone charged with an offense has the right:

1. to be informed without unreasonable delay of the specific offense;

2. to be tried within a reasonable time;

3. not to be compelled to be a witness against himself;

4. to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal;

5. not to be denied reasonable bail without cause;

6. except in a military case tried before a military tribunal, to trial by jury where the maximum punishment for the offense is at least five years imprisonment;

7. not to be found guilty of any act or omission, which at the time of commission was

8. neither an offense under Canadian or International law nor a crime under the general principles of law recognized by the community of nations;

9. if finally acquitted of the offense, not to be tried again and if finally found guilty and punished for the offense, not to be tried or punished for it again; and

10. to be subjected to the most lenient punishment if the possible sentence changes between the commission of an offense and the date of sentencing.

A witness who testifies has the right not to have any evidence that he gives used to incriminate him, except in a prosecution for perjury or for giving contradictory evidence. A party or witness who neither understands nor speaks the language in which the proceedings are conducted or who is deaf has the right to be assisted by an interpreter.

Equality Rights

Everyone is equal and has the right to equal protection and equal benefit of the law without discrimination, especially discrimination based on race, national or ethic origin, color, religion, sex, age, or mental or physical disability. This right does not preclude laws designed to ameliorate disadvantageous conditions that exist because of these factors.

Official Languages of Canada

English and French are the official languages of Canada and New Brunswick. Both languages have equal rights and privileges as to their use in all institutions of the Parliament, government, and legislature. And either may be used in a parliamentary or legislative debate, in any pleading or process before the court, or in any communications with or from any central office or institution of Parliament, government, or the legislature. Statutes, records, and journals must be printed and published in both languages with both versions being equally authoritative.

In New Brunswick, English and French linguistic communities have the right to distinct educational institutions and such distinct cultural institutions as are necessary for their preservation and promotion.

Minority Language Educational Rights

Canadian citizens who live in a province where the first language that they learned and still understand (French or English only) is the minority language of the province have the right to have their children educated in that language. The number of children requiring minority language instruction in the province must be sufficient enough to warrant using the public funds for this purpose.

SNE:lc