- With the Constitution Act, 1982 the Charter of Rights and Freedoms became a part of the Canadian Constitution.
- The Constitution Act, 1982 enshrined the Charter of Rights and Freedoms in the Constitution, and cemented Canadian Independence allowing Canadians to amend their Constitution without requiring approval from Britain.
- As of April 17 1982 The Charter of Rights and Freedoms was brought into force as part of the Constitution of Canada.
- The Constitution of Canada is the supreme law of Canada. This means that any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
(2)The Constitution of Canada includes:
(a) The Canada Act 1982, including the Constitution Act, 1982, ( including the Charter)
(b) the Acts and Order referred to in the schedule; and
(c) and amendments to any Act or order referred to in paragraph (a) or (b)
What are your rights as Guaranteed by the Charter of Rights and Freedoms?
- The Charter sets out those rights and freedoms believed to be necessary in a free and democratic Canadian society.
Some of the rights and freedoms contained in the Charter are:
- freedom of expression
- the right to a democratic government
- the right to live and to seek employment anywhere in Canada
- legal rights of persons accused of crimes
- Aboriginal peoples’ rights
- the right to equality, including the equality of men and women
- the right to use either of Canada’s official languages
- the right of French and English linguistic minorities to an education in their language
- the protection of Canada’s multicultural heritage.
- Fundamental to defending individuals who are accused of criminal offences are Charter Arguments.
- The successful defence of an accused person is often founded in an argument that their rights have been violated, in contradiction of those guaranteed by the Charter of Rights and Freedoms in section 7, 8, 9 10, and 11, 12, 13 and 14.
- Sections 7 to 14 contain our rights that protect us in our dealings with the justice system.
- They safeguard that individuals who are involved in legal proceedings are treated fairly.
- They are most relevant to criminal proceedings.
- States: 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 requires that the Canadian governments respect the basic principles of justice whenever it intrudes on those rights.
- Section 7 is relevant in criminal proceedings because an accused person will encounter the risk of a loss of their liberty, if convicted of a criminal offence.
- States: Everyone has the right to be secure against unreasonable search or seizure.
- The purpose of Section 8 is to protect an individual’s right to a reasonable expectation of privacy.
- This mandates that agents of the government, such as police officers, must conduct themselves in a fair and reasonable way.
- It presents limits on their ability to search Canadians being investigated for criminal offences, stating that police officers cannot enter private property or take things from others unless they can show that they have a good 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.
- Everyone has the right not to be arbitrarily detained or imprisoned.
- Section 9 says that government officials, such as police officers cannot take individuals into custody or hold them there without a just reason.
- The police cannot arbitrarily detain someone.
- 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.
- The rights in section 10 ensure that upon arrest people have an opportunity to challenge the lawfulness of their arrest.
- The police are required to immediately tell the accused the reason for their arrest.
- People being charged with criminal offences have the right to promptly speak to a lawyer to get legal advice regarding these criminal offence charges.
- The police are required to tell them the legal aid services that are available to them. The accused have the right to request that a judge to make a determination as to whether their arrest was legal, and to order their release if it decided to be unlawful.
- Any person charged with an offence has the right
- to be informed without unreasonable delay of the specific offence;
- to be tried within a reasonable time;
- not to be compelled to be a witness in proceedings against that person in respect of the offence;
- to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
- not to be denied reasonable bail without just cause;
- 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;
- 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;
- 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
- 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 fundamental rights that protect anyone charged with a criminal offence under federal or provincial law.
- Individuals accused of criminal offences must be told promptly what offence they are charged with (s. 11(a)); their trials must take place within a reasonable time (s. 11(b)); and they cannot be forced to testify at their own trials (s. 11(c)).
- The presumption of innocence guarantees that anyone accused of breaking the law is presumed to be innocent until proven guilty.
- This is a fundamental principle in our criminal justice system. It dictates that the Crown must prove beyond a reasonable doubt that the person committed the offence, before he or she can be found guilty.
- It ensures that the onus is on the Crown to prove the guilt of the accused, rather than the defence to prove the innocence of the accused.
- Trial proceedings must also be conducted fairly before a court which is unbiased and independent of political or any other influence (s. 11(d)). A fair trial ensures that the rights of the accused are properly protected.
- An accused person is entitled to reasonable bail (s. 11(e)) and, for more serious offences, has the right to trial by jury (s. 11(f)).
- An individual cannot be convicted of a crime unless the law in force at the time of the offence specifically stated that the actions in question were illegal (s. 11(g)).
- If an individual is tried for an offence and found not guilty, he or she cannot be tried on the same charge again. As well, if the person is found guilty and punished for the offence, he or she cannot be tried or punished for it again (s. 11(h)).
- In a situation where a person commits an offence and, before he or she is sentenced, a new law alters the fine or term of imprisonment that applies, that person must be sentenced under whichever law is the more lenient (s. 11(i)).
- Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
- Section 12 means that government or agents of the government cannot treat individuals cruelly or punish them in an excessively harsh manner.
- A witness who testifies in any proceedings has the right not to have any incriminating evidence testified to incriminate that witness in another proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
- The only exception is where a witness lies in court and is charged with the criminal offence of perjury. Only then can the testimony of the witness may be used to attempt to prove that he or she lied in court.
- A party or witness in any judicial proceeding who does not fully understand or fluently speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.