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This video explains the significance of the Canadian Charter of Rights and Freedoms, the history of the Charter and British North America Act, which was the Constitution of Canada, until 1982. It also shares light on the efforts of Canadians, who struggled to create the Charter.

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Fundamental Freedoms- Segment One- Overview of the Canadian Charter of Rights and Freedoms

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This website provides a detailed guideline to the Canadian Charter of Rights and Freedoms, explaining every sections of the Charter.

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This guide explains the Canadian Charter of Rights and Freedoms (the Charter) and its importance in the daily lives of Canadians. This content is not legal advice and should not be taken as legal interpretation of the provisions of the Charter.

The legal text of the Charter is published online as Constitution Act, 1982.

Contents

Part I - Overview

What is the Canadian Charter of Rights and Freedoms?

The Canadian Charter of Rights and Freedoms sets out those rights and freedoms that Canadians believe are necessary in a free and democratic society.

The Charter is one part of the Canadian Constitution. The Constitution is a set of laws containing the basic rules about how our country operates. For example, it states the powers of the federal, and provincial and territorial governments in Canada.

How does the Charter work with other Canadian laws?

The Constitution is the supreme law of Canada; all other laws must be consistent with the rules set out in it. If they are not, they may not be valid. Since the Charter is part of the Constitution, it is the most important law we have in Canada.

However, the rights and freedoms in the Charter are not absolute. They can be limited to protect other rights or important national values. For example, freedom of expression may be limited by laws against hate propaganda or child pornography. Section 1 of the Charter says that Charter rights can be limited by law so long as those limits can be shown to be reasonable in a free and democratic society.

Who does the Charter protect and what rights are protected?

Any person in Canada - whether they are a Canadian citizen, a permanent resident or a newcomer - has the rights and freedoms contained in the Charter. There are some exceptions. For example, the Charter gives some rights only to Canadian citizens - such as the right to vote ( section 3) and the right "to enter, remain in and leave Canada" ( section 6).

History of the Charter

The Chartercame into force on April 17, 1982. One section of the Charter, section 15, came into effect three years after the rest of the Charter, on April 17, 1985, to give governments time to bring their laws into line with the equality rights guaranteed in section 15.

Section 16.1 was added to the Charter in 1993. It makes clear that the English-speaking and French-speaking communities of New Brunswick have equal rights, and that the Government of New Brunswick has a duty to protect and promote those rights.

Before the Charter came into effect, other Canadian laws protected many of the rights and freedoms that are now included in it. One example is the Canadian Bill of Rights, which Parliament enacted in 1960. It applies to legislation and policies of the federal government and guarantees rights and freedoms similar to those found in the Charter. However, the Bill of Rights is not part of the Constitution of Canada.

For decades, the Charter has been the source of change, progress and the affirmation of our society's values. Canadian courts have rendered hundreds of decisions in which they apply the Charter to bring Canadian laws into line with the principles and values of Canadian society. For example:

With respect to language rights, the Charter has reinforced the rights of official language minorities.

With regard to equality rights, the Charter has led to the recognition and enforcement of the rights of a number of minority and disadvantaged groups.

In criminal matters, the Charter has clarified the state's powers with respect to the rights of the accused.

Part II - Understanding the Charter

This part of the guide sets out the actual text of each section of the Charter, followed by an explanation of its meaning and purpose.

Guarantee of rights and freedoms - section 1

1. 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.

The Charter protects those basic rights and freedoms of all Canadians that are considered essential to preserving Canada as a free and democratic country. It applies to all governments - federal, provincial and territorial - and includes protection of the following:

fundamental freedoms, democratic rights

the right to live and seek employment anywhere in Canada

legal rights (life, liberty and personal security)

equality rights for all

the official languages of Canada

minority language education rights

Canada's multicultural heritage

Indigenous peoples' rights

The rights and freedoms in the Charter are not absolute. They can be limited to protect other rights or important national values. For example, freedom of expression may be limited by laws against hate propaganda or child pornography.

Fundamental freedoms - section 2
2. Everyone has the following fundamental freedoms:

1. freedom of conscience and religion;

2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

3. freedom of peaceful assembly; and

4. freedom of association.

Under section 2of the Charter, Canadians are free to follow the religion of their choice. In addition, they are guaranteed freedom of thought, belief and expression. Since the media are an important means for communicating thoughts and ideas, the Charter protects the right of the press and other media to speak out. Our right to gather and act in peaceful groups is also protected, as is our right to belong to an association like a trade union.

These freedoms are set out in the Charter to ensure that Canadians are free to create and express their ideas, gather to discuss them and communicate them widely to other people. These activities are basic forms of individual liberty. They are also important to the success of a democratic society like Canada. In a democracy, people must be free to discuss matters of public policy, criticize governments and offer their own solutions to social problems.

Even though these freedoms are very important, governments can sometimes limit them. For example, freedom of expression may be limited by laws against hate propaganda or child pornography because they prevent harm to individuals and groups.

Democratic rights - sections 3 to 5

Sections 3, 4 and 5 of the Charter contain rules that guarantee Canadians a democratic government.

Section 3 - Democratic rights of citizens

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Section 3 guarantees to all Canadian citizens the right to be involved in the election of their governments. It gives them the right to vote in federal, provincial or territorial elections, along with the right to stand for public office themselves.

Some limits on these rights may be reasonable, even in a democracy. For example, the right to vote or stand for election is limited to Canadians 18 years of age or older.

Section 4 - Maximum duration of legislative bodies

4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

Continuation in special circumstances

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

It is a basic principle in a democracy that a government must consult the voters and stand for re-election at regular intervals. Section 4 states that no Parliament or legislative assembly can continue to sit for longer than five years. Only under extraordinary circumstances, such as a war or national emergency, may a government stay in office for a longer period.

Section 5 - Annual sitting of legislative bodies

5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Another basic democratic principle is that a government must explain its actions to the people. Section 5 of the Charter makes it clear that Parliament and the legislative assemblies must hold a session at least once a year. This guarantees that elected members and the public have a chance to question government actions on a regular basis.

Mobility rights - section 6

Mobility of citizens

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Rights to move and gain livelihood

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:

Limitation

(3) The rights specified in subsection (2) are subject to:

Affirmative Action Program

(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Section 6 protects the right of Canadian citizens to move from place to place, and subsection 6(1) ensures that all Canadian citizens are free to come and go as they please. Extradition laws place some limits on these rights; these laws state that persons in Canada who face criminal charges or punishment in another country may be ordered to return to that country.

Subsection 6(2) gives all Canadian citizens and permanent residents the right to move to, and live in any province or territory. They may also look for work or set up a business there.

Subsection 6(3) makes clear that provinces and territories may decide to give social benefits, such as welfare, only to persons who have lived in the province or territory for a certain period of time. They may also pass employment laws that require workers to have the necessary qualifications to practice their profession or trade.

In addition, subsection 6(4) allows a province or territory that has an employment rate below the national average to create programs that favour its own residents.

Legal rights - sections 7 to 14

Sections 7 to 14 set out rights that protect Canadians when dealing with the justice system. They ensure that individuals who are involved in proceedings are treated fairly, especially those charged with a criminal offence.

Section 7 - Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 7 guarantees the life, liberty and personal security of all Canadians. It also requires that governments respect the basic principles of justice whenever they intrude on those rights. Section 7 often comes into play in criminal matters because an accused person clearly faces the risk that, if convicted, his or her liberty will be lost.

Section 8 - Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

According to the Supreme Court of Canada, the purpose of section 8 is to protect a reasonable expectation of privacy. This means that those who act on behalf of a government, such as police officers, must carry out their duties in a fair and reasonable way. They cannot enter private property or take things from others unless they can show that they have a clear legal reason.

In most cases, they are allowed to enter private property to look for evidence or to seize things only if they have been given a search warrant by a judge. On the other hand, government inspectors may enter business premises without a warrant to check if government regulations are being observed.

Section 9 - Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Section 9 says that government officials cannot take individuals into custody or hold them without a good reason. For example, a police officer must have reasonable grounds for detaining a person. However, courts have stated that laws allowing officers to stop drivers for breath tests are reasonable and do not violate the Charter.

Section 10 - Arrest or detention
10. Everyone has the right on arrest or detention:

1. to be informed promptly of the reasons therefor;

2. to retain and instruct counsel without delay and to be informed of that right; and

3. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

The rights in section 10 apply when a person is arrested or detained. They ensure that people under arrest have a chance to challenge the lawfulness of their arrest. The police must tell them quickly the reasons for their arrest. These people also have the right to talk to a lawyer to get legal advice about their situation, and the police must tell them what legal aid services are available in their area. Persons under arrest also have the right to ask a judge to decide whether their arrest was legal and, if it was not, to order their release.

Section 11 - Proceedings in criminal and penal matters
11. Any person charged with an offence has the right:

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

2. to be tried within a reasonable time;

3. not to be compelled to be a witness in proceedings against that person in respect of the offence;

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

5. not to be denied reasonable bail without just cause;

6. except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

7. not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

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

9. if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Section 11 sets out several important rules that protect anyone charged with an offence under federal, provincial or territorial law.

Persons accused of a crime must be told promptly what offence they are charged with (section 11 a) their trials must take place within a reasonable time (section 11 b); and they cannot be forced to testify at their own trials (section 11 c).

Anyone accused of breaking the law is considered to be innocent until proven guilty. This means that the prosecution must prove beyond a reasonable doubt that the person committed the offence, before he or she can be found guilty. The trial must also be conducted fairly before a court which is unbiased and independent of political or any other influence (section 11 d). A fair trial ensures that the rights of the accused are properly protected.

An accused person is entitled to reasonable bail (section 11 e) and, for very serious charges, has the right to trial by jury (section 11 f).

A court cannot convict a person of a crime unless the law in force at the time of the offence specifically stated that the actions in question were illegal (section 11 g).

If a person is tried for an offence and found not guilty, he or she cannot be tried on the same charge again. Moreover, if the person is found guilty and punished for the offence, he or she cannot be tried or punished for it again (section 11 h).

In a situation where a person commits an offence and, before he or she is sentenced, a new law changes the fine or term of imprisonment that applies, that person must be sentenced under whichever law is the more lenient (section 11 i).

Section 12 - Treatment or punishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Section 12 prohibits treatment and punishment by the state that are cruel and unusual. This includes torture, excessive or abusive use of force by law enforcement officials. Also, sentences of imprisonment must match the seriousness of the crime committed. For example, an extremely long prison sentence is not appropriate for a very minor crime.

Section 13 - Self-incrimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Section 13 states that witnesses who give evidence in court cannot have their testimony used against them in other proceedings. In other words, if the testimony of a witness shows that he or she has committed a crime, that evidence cannot be used by the prosecution to prove that the witness committed an offence. The exception is where a witness commits the crime of perjury which is the offence of lying to the court. In that case, the testimony of the witness may be used to show that he or she lied in court.

Section 14 - Interpreter

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Persons who are hearing impaired or do not understand or speak the language being spoken in court have the right to be assisted by an interpreter. This right applies regardless of which language is involved.

Equality rights - section 15

Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 15 of the Charter makes it clear that every individual in Canada - regardless of race, religion, national or ethnic origin, colour, sex, age or physical or mental disability - is to be treated with the same respect, dignity and consideration. This means that governments must not discriminate on any of these grounds in its laws or programs.

The courts have held that section 15 also protects equality on the basis of other characteristics that are not specifically set out in it. For example, this section has been held to prohibit discrimination on the grounds of sexual orientation, marital status or citizenship.

The Supreme Court of Canada has stated that the purpose of section 15 is to protect those groups who suffer social, political and legal disadvantage in society. Discrimination occurs when a person, because of a personal characteristic, suffers disadvantages or is denied opportunities available to other members of society.

At the same time as it protects equality, the Charter also allows for certain laws or programs that aim to improve the conditions of disadvantaged individuals or groups. For example, programs aimed at improving employment opportunities for women, Indigenous peoples, visible minorities, or those with mental or physical disabilities are allowed under subsection 15(2).

Official languages of Canada - sections 16 to 22

Sections 16 to 20 make clear that official language rights apply in respect of both the federal government and the provincial government of New Brunswick. Canadians can use English or French when they deal with the Government of Canada. Residents of New Brunswick also have the right to use English or French when they deal with their provincial government.

Section 16 - Official languages of Canada

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada.

Official languages of New Brunswick

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

Advancement of status and use

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

Subsections 16(1) and 16(2) confirm that English and French are Canada's and New Brunswick's official languages. They also say that both of these languages can be used equally in the institutions of Parliament and the Government of Canada as well as all institutions of the legislature and Government of New Brunswick.

Note that the Charter guarantees that any member of the public can communicate with and receive service from the federal government in the official language of their choice. The Charter does not oblige any member of the public to become bilingual.

Section 16.1 - English and French linguistic communities in New Brunswick

16.1(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

Role of the legislature and government of New Brunswick

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

Section 16.1 was added to the Charter in 1993. It makes clear that the English-speaking and French-speaking communities of New Brunswick have equal rights, and that the Government of New Brunswick has a duty to protect and promote those rights.

Section 17 - Proceedings of Parliament

17. (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.

Proceedings of New Brunswick legislature

(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

Section 18 - Parliamentary statutes and records

18. (1) The statutes, records and journal of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

New Brunswick statutes and records

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

Section 19 - Proceedings in courts established by Parliament

19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

Proceedings in New Brunswick courts

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

Section 20 - Communications by public with federal institutions
20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where:
Communications by public with New Brunswick institutions

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Section 17 states that everyone has the right to use English or French in Parliament as well as the Legislature of New Brunswick. For example, a witness before a Parliamentary committee may use the official language of his or her choice.

Section 18 states that federal laws as well as those of the Government of New Brunswick, must be published in both English and French and that both versions are equally valid.

Section 19 states that everyone has the right to use English or French in any court established by Parliament, including the Supreme Court of Canada, or by the Government of New Brunswick.

Section 20 outlines the right of Canadians to communicate with the federal government or with the Government of New Brunswick in either English or French. These governments must provide services in both official languages at all of their central offices and other locations where there is a significant demand for them, or where it would be reasonable to expect them.

Section 21 - Continuation of existing constitutional provisions

21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

The purpose of section 21 is to protect language rights that already exist in other parts of the Constitution. For example, section 133 of the Constitution Act, 1867 gives the people of Quebec the right to use either English or French in the Quebec legislature and before any of the courts of that province. It also provides the right to have the provincial laws printed and published in both English and French. The Manitoba Act, 1870 (confirmed in the Constitution Act, 1871) confirms the same rights for the people of Manitoba.

Section 22 - Rights and privileges preserved

22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

Section 22 guarantees that the rights in respect of the use of English and French as set out in the Charter do not remove or reduce any right to use other languages that might be granted by other Acts or by custom.

Minority language educational rights - section 23

Language of instruction
23. (1) Citizens of Canada:
Continuity of language instruction

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

Application where numbers warrant

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province:

Section 23 of the Charter requires provincial and territorial governments to provide education to Canadians in the official language of their choice, even in areas where a minority of residents speaks that language.

In nine provinces and in the three territories, the official language of the majority is English. In these provinces and territories, Canadian citizens have the right to have their children educated in French if:

their first language is French; or

they received their own primary education in Canada in French; or

they have a child who has received or is receiving his or her primary or secondary education in French in Canada.

In Quebec, the language of the majority is French. In Quebec, Canadian citizens have the right to have their children educated in English if:

they received their own primary instruction in Canada in English; or

they have a child who has received or is receiving his or her primary or secondary education in English in Canada.

According to section 59 of the Constitution Act, 1982 (paragraph 23(1) (a) of the Charter) the criteria of "first official language learned and still understood" does not apply in Quebec. It cannot be brought into force without the consent of the National Assembly or government of Quebec. To date, such consent has not been given.

In all cases, the right to receive an education in a minority language applies only when there is a sufficient number of children to justify providing schooling in that language. Where those numbers do exist, governments must provide instruction in the minority language.

Enforcement - section 24

Enforcement of guaranteed rights and freedoms

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.

Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Section 24 discusses the involvement of the court if an individual's Charter rights have been denied.

Anyone who believes his or her rights or freedoms under the Charter have been violated by any level of government can go to court to ask for a remedy. That person must show which Charter right or freedom has been violated. If a limit to the right or freedom is set out in the law, the government will have an opportunity to show that the limit is reasonable under section 1 of the Charter. If the court is not convinced by the government's argument, then it can grant a remedy that is just and appropriate in the circumstances.

For example, in criminal cases, a court may make an order to stop a trial if they decide that the person has been denied the right to a fair trial within a reasonable time. A special remedy is available under subsection 24(2) if the denial of a Charter right takes place during a government investigation. For example, if a government official improperly searches for evidence on private property (section 8), a court may order that the evidence not be used against the person in trial if it is clear that using the evidence would diminish public confidence in law enforcement and the justice system.

A court may also make an order that a law that violates a person's Charter rights is not valid. This power comes from section 52 of the Constitution Act, 1982.

General - sections 25 to 31

Sections 25 to 31 contain interpretative provisions.

Section 25 - Aboriginal, treaty or other rights and freedoms
25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:
The Constitution recognizes the rights of Aboriginal Peoples of Canada to protect their culture, customs, traditions and languages. The Aboriginal Peoples of Canada are also referred to as Indigenous Peoples, though constitutional provisions specifically refer to Aboriginal Peoples.

Section 25 makes it clear that other rights contained in the Charter must not interfere with the rights of Aboriginal Peoples. For example, where Indigenous Peoples are entitled to special benefits under treaties, other persons who do not enjoy those benefits cannot argue that they have been denied the right to be treated equally under section 15 of the Charter.

In addition to section 25 of the Charter, section 35 of the Constitution Act, 1982, Part II -Rights of the Aboriginal Peoples of Canada, states that the existing Aboriginal and treaty rights of the Indigenous Peoples of Canada are recognized and affirmed. The Supreme Court of Canada has ruled that section 35 means that Indigenous rights under treaties or other laws are now protected under the Constitution Act, 1982.

Section 26 - Other rights or freedoms that exist in Canada

26. The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

Canadians have rights and freedoms under laws other than the Charter. The purpose ofsection 26 is to ensure that these rights or freedoms are not extinguished because they are not expressly spelled out in the Charter. It also makes clear that Parliament and the legislatures are free to create rights beyond those that are in the Charter. By establishing basic or minimum rights, the Charter does not restrict the creation or enjoyment of other rights.

Section 27 - Multicultural heritage

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

Section 27 recognizes that Canada is home to many cultural groups and seeks to maintain and promote multiculturalism.

Section 28 - Gender equality rights

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Section 28 makes it clear that both women and men are equally protected under the Charter. This principle is also found in section 15.

Section 29 - Denominational school rights and privileges

29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

The Charter does not affect the operation of religious schools that are protected elsewhere under the Constitution.

More specifically, the freedoms of conscience and religion in section 2of the Charter and the equality rights in section 15 do not limit the right of Canadians under the Constitution Act, 1867, to establish religious or denominational schools.

Section 30 - Application to territories and territorial authorities

30. A reference in this Charter to a province or to the legislative assembly or legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.

The Charter applies to the Yukon Territory, the Northwest Territories and Nunavut in exactly the same way as it does to the provinces. At the time the Charter was enacted, the Northwest Territories included the territory now called Nunavut.

Section 31 - Charter does not extend powers of legislatures

31. Nothing in this Charter extends the legislative powers of any body or authority.

The Charter in no way affects the sharing of responsibilities or the distribution of powers between the provinces and the territories, and the federal government. The powers of the provincial and federal governments are set out in the Constitution Act, 1867. The legislative, executive and judicial powers exercised in the three territories are contained in the Yukon Act, the Northwest Territories Act and the Nunavut Act, which are federal statutes.

Application of the Charter - sections 32 and 33

Sections 32 and 33 discuss the application of the Charter: what it applies to and the limits to its application.

Section 32 - Application of Charter
32. (1) This Charter applies:
Exception

(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

The purpose of section 32 is to make it clear that the Charter only applies to governments, and not to private individuals, businesses or other organizations.

Subsection 32(2) was necessary to give governments a chance to amend their laws to bring them into line with equality rights. Section 15 of the Charter did not come into force until three years after the rest of the Charter became effective on April 17, 1982.

Section 33 - Exception where express declaration

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 Charter.

Operation of exception

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Five year limitation

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

Re-enactment

(4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1).

Five year limitation

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

The purpose of section 33 is to require a government that wishes to pass laws that limit Charter rights to say clearly what it is doing and accept the political consequences.

Section 33 is sometimes referred to as the "notwithstanding clause". It gives Parliament and provincial and territorial legislatures limited power to pass laws that may limit certain Charter rights - namely fundamental freedoms, legal and equality rights.

They can only do this if they clearly state that a particular law is exempt from the Charter. An exemption from the Charter lasts a maximum of five years, but may be re-enacted by Parliament or the legislature concerned.

To date, provincial or territorial legislatures have rarely used this section. It has never been used by the federal Parliament.

Citation - section 34

34. This Part may be cited as the Canadian Charter of Rights and Freedoms.

Section 34 simply means that the official name of Part I of the Constitution Act, 1982 (contained in sections 1 to 33) is the Canadian Charter of Rights and Freedoms.

Constitution Act, 1982 - section 52 (Part VII - General)

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

This section of the Constitution gives the courts the power to rule that a particular law is not valid if it violates the Charter, which itself is part of the Constitution.

While subsection 52(1) is not part of the Charter, it provides courts with an important power to strike down laws that violate Charter rights. If only part of the law violates the Constitution, only that part will be ruled invalid.

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Guide to the Canadian Charter of Rights and Freedoms

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This guide explains the Canadian Charter of Rights and Freedoms (the Charter) and its importance in the daily lives of Canadians. This content is not legal advice and should not be taken as legal interpretation of the provisions of the Charter. The legal text of the Charter is published online as Constitution Act, 1982.

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This video talks about police searches and seizures. Now, the fourth amendment says that you have the right to be protected against "unreasonable searches and seizures" but what exactly does this mean? Well, it's complicated. The police often need warrants issued with proof of probable cause, but this isn't always the case - such as when you're pulled over for a moving violation.

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Search and Seizure: Crash Course Government and Politics #27

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This website gives insight on the provision of "Freedom of Religion" of the Canadian Charter, giving detailed explanation of the purpose of this provision (which is to prevent interference with profoundly held personal beliefs) and also the detailed analysis of this provision.

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Provision

2. Everyone has the following fundamental freedoms:

freedom of conscience and religion.

Similar provisions

Purpose

The purpose of section 2(a) is to prevent interference with profoundly held personal beliefs that govern one's perception of oneself, humankind, nature, and, in some cases, a higher or different order of being (R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 at page 759; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at page 346; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paragraph 41; Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567 at paragraph 32).

Analysis

1. Freedom of religion

General

Freedom of religion has been defined as "the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practise or by teaching and dissemination" ( Big M, supra at page 336; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at paragraph 72; Amselem, supra at paragraph 40; Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698 at paragraph 57; Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256 at paragraph 32; Bruker v. Marcovitz, [2007] 3 S.C.R. 607 at paragraph 71; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), [2017] 2 S.C.R. 386 at paragraph 63). The term "religion" has not been specifically defined, although the Supreme Court has stated that beliefs or practices rooted in secularism are not protected by the guarantee of freedom of religion and, further, that "religion" typically involves: a particular and comprehensive system of faith and worship; a belief in a divine, superhuman or controlling power; and/or a personal conviction or belief that fosters a connection with the divine or with the subject or object of that spiritual faith ( Amselem, supra at paragraph 39). Note, however, that the Court has also stated that the rights of atheists, agnostics, skeptics and the unconcerned are equally protected by section 2(a) ( Hutterian Brethren, supra at paragraph 90; Mouvement laïque québecois v. Saguenay (City), [2015] 2 S.C.R. 3 at paragraph 70).

The Supreme Court has interpreted section 2(a) broadly with a stated preference for leaving competing state interests, including competing rights, to be reconciled under section 1, or through the proportionality analysis in the case of judicial review of administrative decisions, rather than formulating internal limits to the scope of freedom of religion ( Ross, supra at paragraph 73; see also Reference re Same-Sex Marriage, supra at paragraph 53; and Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 S.C.R. 467 at paragraph 154). Section 1 is considered a more flexible tool for balancing competing rights (very often equality rights of other individuals) ( B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 at pages 383-384; see also Multani, supra at paragraphs 26-30). In spite of the guarantee's broad scope, however, the Court has also set certain limits, stating that "the freedom to hold beliefs is broader than the freedom to act on them" ( Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772 at paragraph 36; B.(R.) supra at paragraphs 107 and 226; see also Whatcott, supra at para. 154).

The Supreme Court has stated on many occasions that freedom of religion can be limited where it interferes with the fundamental rights of others ( Ross, supra at paragraph 72; B.(R.), supra at page 385; Big M, supra at page 337; Amselem, supra at paragraph 62). When individual rights come into conflict, the conflict ought to be resolved through the proper delineation of the rights and values involved ( Trinity Western v. British Columbia College of Teachers, supra at paragraphs 29-31; Reference re Same-Sex Marriage, supra at paragraphs 50 and 52; B.(R), supra at paragraph 226).

In Law Society of British Columbia v. Trinity Western University, [2018] 2 S.C.R. 293, and its companion case Trinity Western University v. Law Society of Upper Canada, [2018] 2 S.C.R. 453, the Supreme Court chose to reconcile the competing religious freedom of evangelical community members of TWU with the equality rights of LGBTQ persons through the proportionality analysis at the second stage of the Doré/Loyola framework for the judicial review of administrative decisions that engage Charter rights. The majority found that the impact on the religious freedom of TWU community members was of "minor significance" and that the law societies' decisions represented a proportionate balance with the significant statutory objectives of ensuring LGBTQ equality and public confidence in the legal profession.

The scope of section 2(a) is not, however, without limits. In Ktunaxa, supra, at paragraphs 71-72, a majority of the Supreme Court held that an Indigenous spiritual freedom claim to the protection of a sacred mountain valley site from a proposed ski resort development did not fall within the scope of section 2(a), which does not protect the object of beliefs or the spiritual focal point of worship and the subjective meaning derived from them.

Freedom of religion comprises both an individual aspect and a collective aspect ( Loyola High School v. Quebec (Attorney General), [2015] 1 S.C.R. 613; Ktunaxa, supra at paragraph 74; Hutterian Brethren, supra at paragraph 182, per LeBel J). The Supreme Court has noted that religion is about both religious beliefs and "religious relationships" (Law Society of British Columbia v. Trinity Western University, supra at para. 64). Recognizing the linkages between religious belief and its manifestation through "communal institutions and traditions", the Court has found that "measures that undermine the character of lawful religious institutions and disrupt the vitality of religious communities represent a profound interference with religious freedom" ( Loyola High School, supra at paragraph 67; see also Law Society of British Columbia v. Trinity Western University, supra at paragraphs 64 and 99). In Law Society of British Columbia v. Trinity Western University, supra, a majority of the Court found that the refusal of the regulatory bodies to accredit a new law school governed by a mandatory covenant, which precluded sexual relations outside marriage between a man and a woman, engaged s. 2(a) of the Charter by limiting the ability of members of the TWU community to enhance their spiritual development through studying law in an environment defined by their religious beliefs. In collective-type claims, freedom of religion may encompass or intersect with other rights, such as freedom of expression, freedom of association and equality (at paragraphs 76-78; 122; 316).

Analytical framework

An infringement of section 2( a) of the Charter will be made out where:

1. the claimant sincerely believes in a belief or practice that has a nexus with religion; and

2. the impugned measure interferes with the claimant's ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or insubstantial.

(i) Nature of the belief or practice

Under the first step, as stated above, freedom of religion will only be triggered where the claimant shows that he or she has a sincere practice or belief that has a nexus with religion, "which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual's spiritual faith" ( Amselem, supra at paragraph 56).

Sincerity of belief is a question of fact. To establish sincerity, an individual must show that he or she sincerely believes that a certain belief or practice is required by his or her religion. The religious belief must be asserted in good faith and must not be fictitious, capricious or an artifice. In assessing the sincerity of the belief, a court will take into account, inter alia, the credibility of the testimony of the person asserting the particular belief and the consistency of the belief with his or her other current religious practices ( Multani, supra at paragraph 35; Amselem, supra at paragraphs 52-53). It is the sincerity of the belief at the time of the interference, not its strength or absolute consistency over time, that is relevant at this stage of the analysis ( R. v. N.S., [2012] 3 S.C.R. 726 at paragraph 13).

Assuming the sincerity of an asserted religious belief, it is not then open to the court to question its validity. It is sufficient to trigger constitutional scrutiny if the effect of the impugned act or provision interferes with an individual's religious activities or convictions ( Ross, supra at paragraph 71; R. v. Jones, [1986] 2 S.C.R. 284 at page 295).

In Ktunaxa, supra at paragraphs 71-72, a majority of the Supreme Court declined to extend the scope of section 2(a) to include the protection of the object of beliefs or the spiritual focus of worship, and the subjective meaning derived from them, on the basis that it would put the contents and merits of deeply held personal beliefs under judicial scrutiny, contrary to Amselem, supra.

(ii) Nature of the interference

However, the Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. Claimants must provide objective proof of interference, not just cite subjective belief of interference ( S.L., supra at paragraphs 2 and 24). Not every effect of legislation on religious beliefs or practices is offensive to the guarantee of freedom of religion. Section 2(a) does not require the legislature to refrain from imposing any burdens on the practice of religion. Legislative or administrative action which has a trivial or insubstantial effect on religion is not a breach of freedom of religion, yet there is no requirement to demonstrate actual harm, only that the freedom is infringed ( Ross, supra at page 870; Edwards Books, supra at page 759; Little, supra at paragraph 17). Trivial or insubstantial interference has been described as interference that does not threaten actual religious beliefs or conduct ( Hutterian Brethren, supra at paragraph 32). The oath to the Queen, as a requirement of becoming a Canadian citizen, has been found to be secular and thus not to constitute a more than trivial or insubstantial interference with the sincerely held religious beliefs of non-Anglicans ( McAteer v. Canada (Attorney General), 2014 ONCA 578, leave to appeal dismissed, [2014] S.C.C.A. No. 444).

It is unclear whether the effect of any breach of the state's duty of religious neutrality could be considered trivial or insubstantial so as not to unjustifiably limit freedom of religion (see Saguenay, supra).

The state is normally under no duty under section 2(a) to take affirmative action to eliminate the natural costs of religious practices or to otherwise provide positive assistance such as public funding. The Charter guarantees freedom of religion but does not indemnify practitioners against all costs incidental to the practice of religion ( Edwards Books, supra at paragraphs 97 and 114; Hutterian Brethren, supra at paragraph 95). Accommodation or differential treatment may be necessary, nonetheless, to avoid indirect coercion arising from state action ( Edwards Books, supra). Note, also, that several Supreme Court justices have suggested that, in exceptional circumstances, positive government action may be required to make the right to freedom of religion meaningful, according to the test set out in Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 (see the dissenting judgment in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 at paragraphs 73-79).

Selected issues in respect of freedom of religion

(i) Freedom from conformity to religious dogma

Freedom from conformity to religious dogma (freedom to express and manifest religious non-belief and the freedom to refuse to participate in religious practice) is not necessarily impaired by legislation with a secular inspiration which requires conduct consistent with the tenets of a religion. Such legislation might, however, limit the freedom of conscience and religion of persons whose conduct is governed by an intention to express or manifest their non-conformity with religious doctrine ( Edwards Books, supra at paragraph 101).

Although section 2(a) of the Charter is not infringed merely because education may be consistent with the religious beliefs held by a majority of Canadians, teaching students Christian doctrine as if it were the exclusive means through which to develop moral thinking and behaviour amounts to religious coercion in the classroom ( Canadian Civil Liberties Assn. v. Ontario (1990), 71 O.R. (2d) 341 (C.A.) at paragraph 57; Zylberberg et al. v. Sudbury Board of Education (1988), 52 D.L.R. (4th) 577 (Ont. C.A.)). Also the same time, requiring a religious school to teach its own religion from a neutral perspective has been found to seriously impair the religious freedom of the school's community members ( Loyola, supra).

Government may not coerce individuals into affirming a specific religious belief nor to manifest a specific religious practice for a sectarian purpose. Government may not compel individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to others ( Big M, supra at pages 347, 350). But the right not to believe is not infringed by a criminal offence that is rooted in a moral principle developed within a religious tradition ( Edwards Books, supra at pages 760-761). A person's belief in the religious aspect of a societal institution does not free that person from an obligation to comply with the civil aspect ( Jones, supra at page 313).

A requirement to apply to a school board for a religious exemption from mandatory school attendance in order to attend a private religious school or to receive instruction at home does not offend section 2(a); it accommodates it ( Jones, supra at page 312). Similar reasoning applies to a law allowing businesses to close on days other than Sunday for religious reasons ( Edwards Books, supra at pages 779-780).

Permitting exemptions to a religious requirement can still, however, result in an infringement of section 2(a) by in effect compelling a religious statement by those seeking an exemption or due to peer pressure which might militate against seeking an exemption ( Saguenay, supra at paragraphs 120-125).

(ii) Secularism and state neutrality

The meaning of secularism has also been addressed by the Supreme Court. According to the Court, the concept of secularism rules out any attempt to use the religious views of one part of the community to exclude from consideration the values of other members of the community. A requirement of secularism implies equal recognition and respect to all members of a community. Religious views that deny equal recognition and respect to the members of a minority group cannot be used to exclude the concerns of the minority group (Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710 at paragraph 19).

Secularism is closely linked to the notion of "state neutrality" in respect of religion, which the Supreme Court has articulated as follows:

"... following a realistic and non-absolutist approach, state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected." ( S.L. v. Commission scolaire des Chênes, [2012] 1 S.C.R. 235 at paragraph 32; see also Loyola, supra at paragraphs 43-45).

A breach of a duty of state neutrality must be established by proving that the state is professing, adopting or favouring one belief to the exclusion of all others and that the exclusion has resulted in interference with the complainant's freedom of conscience or religion ( Saguenay, supra at paragraph 83). While the state cannot favour one religious view at the expense of others, the duty of neutrality does not require it entirely to abstain from celebrating and preserving its religious heritage ( Saguenay, supra at paragraphs 87 and 116).

Such neutrality is consistent with promoting diversity in a multicultural society as enshrined in section 27 of the Charter and with a democratic imperative that requires the state to encourage everyone to participate freely in public life regardless of their beliefs ( Saguenay, supra at paragraph 74). The reference to the supremacy of God in the preamble of the Charter cannot be relied on to reduce the scope of freedom of religion and authorize the state to consciously profess a theistic faith ( Saguenay, supra at paragraphs 147-48).

Secularism in the Canadian context has not been held to mean that religion has no place in the public sphere. For example, in R. v. N.S., the majority of the Supreme Court concluded that a secular response that requires individuals to "park their religion at the courtroom door" ( e.g. to always remove the full niqab face veil before testifying in criminal proceedings) is inconsistent with Canadian jurisprudence and "our tradition of requiring state institutions and actors to accommodate sincerely held religious beliefs insofar as possible" and risks limiting freedom of religion where no limit can be justified ( R. v. N.S., supra at paragraphs 2, 31, 50-56; see also Chamberlain, supra at paragraph 19).

State compliance with its duty of neutrality does not entail a reconciliation of rights. The state does not have a freedom to believe or to manifest belief. However, the Court has stated that the same restrictions do not apply to the exercise by state officials of their own freedom of conscience and religion when they are not acting in an official capacity ( Saguenay, supra at paragraph 119).

(iii) Religious communications

Since there is no prima facie privilege for religious communications at common law, a case-by-case application of the Wigmore criteria will allow courts to determine whether an individual's freedom of religion will be imperilled by the admission of evidence, and section 2(a) and section 27 of the Charter require a non-denominational approach in this regard ( R. v. Gruenke, [1991] 3 S.C.R. 263 at pages 289-291).

(iv) Best interests of the child

Parents have the right to rear their children according to their religious beliefs, including choosing religious education and choosing medical and other treatments ( B.(R.), supra at paragraph 105; P.(D.) v. S.(C.), [1993] 4 S.C.R. 141; Jones, supra at page 296). However, such activities can and must be restricted when they are against the child's best interests ( B.(R)., supra at page 383). Furthemore, the exercise of discretionary powers in a custody application that are based solely on the best interests of the child can prevent the imposition of religious views of the non-custodial parent on the child ( Young v. Young, [1993] 4 S.C.R. 3 at pages 94 and 122; P.(D.) v. S.(C.), supra at page 182).

When the "best interests of the child" standard, as provided in child protection legislation, is applied in a way that takes into increasingly serious account the young person's views in accordance with their maturity in a given medical treatment case (and allows the young person to lead evidence showing mature medical decisional capacity), the legislative scheme is neither arbitrary, discriminatory, nor violative of religious freedom ( A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181 at paragraphs 98 and 115).

With respect to education, while parents have the right to pass on their religious beliefs to their children, "...the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores [in this case] the Quebec government's obligations with regard to public education." ( S.L., supra at paragraph 40; see also Loyola, supra at paragraph 71).

(v) Income taxes

The non-filing of annual returns, like the non-payment of taxes, does not qualify as a religious practice nor has it become the tenet of any religious faith. Furthermore, the filing of annual income tax returns, like the payment of taxes, cannot reasonably be regarded as an expression of support for a particular government expenditure or policy so as to offend a claimant's Charter right to freedom of religion and conscience ( Little, supra at paragraphs 10 and 17).

2. Freedom of conscience

While the Supreme Court has not given much consideration to freedom of conscience, it has noted that this aspect of section 2(a) includes the right not to have a religious basis for one's conduct ( Edward Books, supra at paragraph 99). In the concurring judgment of Wilson J. in R. v. Morgentaler, [1988] 1 S.C.R. 30 at page 37, freedom of conscience was distinguished from freedom of religion as follows:

""Freedom of conscience and religion" should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality and the terms "conscience" and "religion" should not be treated as tautologous if capable of independent, although related, meaning..."

The oath to the Queen of Canada (as part of becoming a Canadian citizen) has been found not to limit the freedom of conscience of persons who say they are morally and ethically opposed to what the Queen stands for; it is not an oath to the Queen as an individual but to our form of government of which the Queen is a symbol ( McAteer, supra at paragraphs 117-120).

3. Section 93 denominational school rights and privileges

The denominational, dissentient and separate school rights or privileges protected under section 93 of the Constitution Act, 1867 are the product of an historical compromise crucial to Confederation and form a comprehensive code immune from Charter review that cannot be enlarged through the operation of section 2(a) ( Adler v. Ontario, [1996] 3 S.C.R. 609 at paragraph 35; Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Ontario Home Builders' Association v. York Region Board of Education, [1996] 2 S.C.R. 929 at paragraph 77). See also the discussion in "Charterpedia, section 29".

A secular public school system does not limit section 2(a), but any government funding of religious schools beyond that required by section 93 would have to be extended equally among religions ( Adler, supra at paragraph 49).

Section 1 considerations particular to this section

Freedom of religion is not unlimited, "...and is restricted by the right of others to hold and to manifest beliefs and opinions of their own, and to be free from injury from the exercise of the freedom of religion of others. Freedom of religion is subject to such limitations as are necessary to protect public safety, order, health or morals and the fundamental rights and freedoms of others" ( Ross, supra at paragraph 72; B.(R.),supra) at page 385; Big M, supra at page 337; Amselem, supra at paragraph 62).

A section 1 justification is unavailable where the purpose of the legislation is to infringe freedom of religion ( Big M, supra at page 353; Hutterian Brethren, supra at paragraph 92).

While religious freedom has both individual and collective aspects, community impact does not transform an individual claim into the assertion of a group right. The broader impact of an infringement on a religious community is relevant at the proportionality stage of a section 1 analysis ( Hutterian Brethren, supra at paragraph 31).

The reasonable accommodation analysis undertaken when applying human rights legislation and the proportionality analysis under section 1 of the Charter are conceptually distinct ( Hutterian Brethren, supra at paragraphs 66-71; see also the minority reasons in Multani, supra at paragraphs 129-135). Where the validity of a law of general application is at stake, the proper approach is a section 1 Charter analysis based on the Oakes test. Where a government action or administrative practice is challenged, the case law on the duty to accommodate may be helpful "to explain the burden resulting from the minimal impairment test with respect to a particular individual" [emphasis in original] ( Hutterian Brethren, supra at paragraph 67).

Section 2(a) cases will often fall to be decided at the final balancing stage of the proportionality analysis since freedom of religion cases often present an "all or nothing" dilemma. Compromising religious beliefs is something adherents may justifiably be unwilling to do, and governments may find it difficult to tailor laws to the myriad ways in which they may trench on different people's religious beliefs and practices ( Hutterian Brethren, supra at paragraph 61).

When judging the seriousness of the limit in a particular case, while the perspective of the religious or conscientious claimant is important, this perspective must be considered in the context of a multicultural, multi-religious society where the duty of state authorities to legislate for the general good inevitably produces conflicts with individual beliefs ( Hutterian Brethren, supra at paragraph 90).

Where the incidental effects of a law passed for the general good on a particular religious practice are so great that they effectively deprive the adherent of a meaningful choice, the impact of the limit on the right will be very serious. In contrast, where a limit exacts a cost but leaves the adherent with a meaningful choice about the religious practice, the impact on the right will be less serious ( Hutterian Brethren, supra at paragraphs 94-5).

Section 2(a) cases often involve the review of discretionary administrative decisions rather than direct challenges to laws (see for example, Trinity Western University v. Law Society of British Columbia, supra; Ktunaxa, supra; Loyola, supra). Such cases will be examined in accordance with the framework set out in Doré v. Barreau du Québec, [2012] 1 S.C.R. 392, and Loyola, supra, rather than pursuant to the Oakes test. A reviewing court will consider whether the administrative decision engages Charter protections and, if so, whether it reflects a proportionate balancing of the Charter protections at play with the relevant statutory mandate (for more information on this framework, see "Charterpedia, Section 1").

The content is current up until 2022-07-31.

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Department of Justice Canada's Internet site

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This particular post shares lights on the Charter Rights upon Arrest and Detention. It also explains the different interpretations of the word "detention", which is very essential when understanding this right.

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Provision

10. Everyone has the right on arrest or detention

1. to be informed promptly of the reasons therefor;

2. to retain and instruct counsel without delay and to be informed of that right; and

3. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Purpose

Section 10 provides for certain rights that are triggered as soon as an individual is "detained" or "arrested" within the meaning of the section.

Analysis

1. Detention - Generally

"Detention" in section 10 has the same meaning as in section 9 of the Charter (R. v. Hufsky, [1988] 1 S.C.R. 621 at paragraph 12).

"Detention" under section 10 is directed towards a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel. Detention requires some form of physical or psychological restraint, compulsion or coercion ( R. v. Grant, [2009] 2 S.C.R. 353 at paragraph 44). Section 10 is directed at a multiplicity of restraints of liberty of varying duration (R. v. Therens, [1985] 1 S.C.R. 613 at paragraph 50).

A psychological detention occurs where the subject is legally required to comply with a direction or where, in the absence of such a direction, state conduct would lead a reasonable person to conclude that he or she had no choice but to comply ( Therens, supra at paragraph 57; Grant, supra at paragraphs 30, 44). In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider:

1. the circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether police were providing general assistance, maintaining general order, making general inquiries or singling out the individual for focused investigation;

2. the nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter; and

3. the characteristics or circumstances of the individual where relevant, including age, physical stature, minority status, and/or level of sophistication (Grant, supra at paragraph 44).

The above analysis involves an objective determination, made in light of the circumstances of the encounter as a whole; the perspective of the reasonable person must be informed by the fact that a bystander is under no legal obligation to comply with a police request for information or assistance. The onus is on the applicant to show that he or she was deprived of his or her liberty of choice ( R. v. Suberu, [2009] 2 S.C.R. 460 at paragraphs 22, 28).

The constitutional rights in section 10 (and section 9) are not engaged by delays that invoke no significant physical or psychological restraint:

[T]he police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint ( Suberu, supra at paragraph 23, citing R. v. Mann, [2004] 3 R.C.S. 59, at paragraph 19).

Therefore, an investigative detention does not necessarily arise the moment police engage an individual for investigative purposes or ask preliminary questions ( Suberu, supra at paragraphs 23, 28).

Changes in one's conditions of imprisonment may be sufficiently severe so as to be considered a second "detention," the legality of which is reviewable by habeas corpus (see Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643 at pargraph 13; see also May v. Ferndale Institution, [2005] 3 S.C.R. 809; Mission Institution v. Khela, [2014] 1 S.C.R. 502). The concept of an additional detention engaging section 10 rights may also apply in other circumstances (see e.g., R. v. Bourdon, 2010 ONSC 2089, concerning the apprehension of an offender after suspension of a long-term supervision order).

2. Detention - Criminal context

In many cases, it will be undisputed that a detention has occurred. Generally, there is a detention when a police officer or other state agent assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel ( R. v. Thomsen, [1988] 1 S.C.R. 640 at paragraphs 12-13).

Where it is unclear whether a police request amounts to a detention, a number of factors must be assessed:

1. the precise language used by the police officer in requesting the person to come to the police station, and whether the person was given a choice or expressed a preference that the interview be conducted at the police station;

2. whether the person was escorted to the police station by a police officer or went himself or herself in response to a police request;

3. whether the person left at the conclusion of the interview or was arrested;

4. the stage of the investigation;

5. whether the police had reasonable and probable grounds to believe that the person had committed a crime;

6. the nature of the questions; whether the questions were of a general nature; and

7. the subjective belief by the person that he or she was detained; personal circumstances relating to the person (R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.), leave to appeal to S.C.C. refused, [1988] 1 S.C.R. xi (note)).

These factors from the Moran decision continue to be cited in appellate and lower court cases decided after the Supreme Court's decision in Grant, supra (see, e.g., R. v. Seagull, 2015 BCCA 164 and R. v. Lafrance, 2017 ABQB 446). The Moran factors have yet to be explicitly adopted in Supreme Court jurisprudence, but were referred to with apparent approval in the partially concurring minority reasons in Grant, at paragraph 168, per Binnie J. Any current invocation of the factors should be considered as subject to the general considerations outlined by the majority in Grant (see R. v. Nicholas, 2017 ONCA 646).

Where it is clear that criminal liability may result from a person's refusal to accompany the police, the necessary element of compulsion or coercion required for a finding of detention is present. The detention is not and cannot be dependent upon "compliance" by the recipient of the demand ( R. v. Schmautz, [1990] 1 S.C.R. 398 at paragraphs 17-19).

A person is not detained when voluntarily submitting to the questioning of police officers if that questioning is not hostile or coercive in nature and the person does not believe his or her freedom to be restrained, or the circumstances would not lead him or her reasonably to believe his or her freedom to be restrained ( R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.), leave to appeal to S.C.C. refused, [1986] 1 S.C.R. viii). The fact that an individual is advised that he or she is free to leave at any time is relevant but not determinative. If the surrounding circumstances give rise to a reasonable belief that there was no choice but to submit to the police demand, a detention has occurred ( R. v. Johns, [1998] O.J. No. 445, (1998), 123 C.C.C. (3d) 190 (Ont. C.A.) at paragraph 28). The principle in this context, from earlier jurisprudence, must be considered in light of the further elaboration of general principles on detention in cases such as Mann and Grant, supra.

A detention may occur simply by the police officer touching an individual and ordering him to move ( R. v. Feeney, [1997] 2 S.C.R. 13 at paragraph 56).

A student summoned by the principal who feels compelled to be there is not detained for the purposes of paragraph 10(b), although this might be the case where the principal is acting as an agent of the police ( R. v. M.(M.R.), [1998] 3 S.C.R. 393 at paragraphs 65-68). The same appears to be true where the person detaining the individual is a private store detective ( R. v. Shafie (1989), 47 C.C.C. (3d) 27 (Ont. C.A.) at 33-34).

When police investigations are expanded and directed at other offences during a questioning session, the police have a duty to inform the person of rights under section 10 again. As such, an individual is in effect "re-detained" ( R. v. Borden, [1994] 3 S.C.R. 145 at paragraphs 43-45; R. v. Black, [1989] 2 S.C.R. 138 at 152-153).

The demand for a roadside breath test under subsection 234.1(1) (now subsection 254(2)) of the Criminal Code falls within the criteria for detention. The difference in duration of the restraint of liberty resulting from a subsection 234.1(1) demand (screening) and that resulting from a subsection 235(1) (now subsection 254(3) of the Criminal Code) demand (breathalyzer) is not such as to prevent the former from constituting a detention within the meaning of section 10 ( Thomsen, supra at paragraph 13; Schmautz, supra at paragraphs 16-17).

3. Detention - Border context

Since there is no right for non-citizens to enter or remain in Canada, and considering that all persons seeking entry to Canada must pass through immigration screening, a routine secondary examination is equivalent to the first level customs inspection found to be constitutional in R. v. Simmons, [1988] 2 S.C.R. 495. The restriction on the person's freedom has not gone beyond what is required for the processing of the application for entry and is not, therefore, a detention within the meaning of paragraph 10(b) ( Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053 at paragraphs 34-42). Normal routine questioning, even where there is a suspicion that the individual is committing an illegal act, does not amount to a detention in the customs context ( R. v. Hardy, [1994] B.C.W.L.D. 1872 (S.C.) at paragraphs 64-73).

However, when a person is taken out of the normal course of routine questioning by officials, and required to submit to a strip search, that person is detained within the meaning of section 10 ( Simmons, supra at paragraphs 35-36; R. v. Jacoy, [1988] 2 S.C.R. 548 at paragraph 14).

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10. Everyone has the right on arrest or detention to be informed promptly of the reasons therefor; to retain and instruct counsel without delay and to be informed of that right; and to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

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The image of official English version of the Canadian Charter of Rights and Freedoms.

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The image of official English version of the Canadian Charter of Rights and Freedoms.

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This video explores the creation of Canada's Constitution. Starting from the history of creation of British North America Act to the present solid dependent Constitution of Canada, which encompasses the Canadian Charter of Rights and Freedoms.

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Image of Architect of the Charter (Roger Tasse)

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Image of Architect of the Charter (Roger Tasse)

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Roger Tasse (June 5, 1931 – May 20, 2017) was a Canadian lawyer and civil servant.
Beginning in 1980, Roger Tasse led a team of Department of Justice lawyers charged with drafting the Canadian Charter of Rights and Freedoms, which was adopted in 1982. His key role in the creation of the bill of rights, entrenched in the Constitution of Canada, earned him the nickname, "Architect of the Canadian Charter of Rights and Freedoms".

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This document defines the Freedom of religion and also explains a case, involving the violation of the freedom of religion and the decision of the Supreme Court of Canada, whereby four Jewish appellants were denied the building of succahs in their co-owned balconies, which is a religious practice.