CHARTER OF RIGHTS AND FREEDOMS
CHARTER RIGHTS I
CHARTER OF RIGHTS AND FREEDOMSCHARTER RIGHTS I
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FUNCTIONAL COMPETENCY
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TABLE OF CONTENTS
OBJECTIVE
Given descriptions of sample events pertaining to the Charter of Rights and Freedoms, identify the section and category of rights concerned.
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The Canadian Charter of Rights and Freedoms is one of the most significant pieces of legislation passed by the Canadian government during the last half of the twentieth century. As you pursue your career with the RCMP this law will have a profound effect on the way you perform your police duties, and your relationship with all Canadians.
This module is designed to familiarize you with the most important sections of the Charter and how they guide the performance of police duties.
Almost everything you do while enforcing the law, has the potential to conflict with and infringe on the rights of some individual. You must be constantly sensitive to these situations and understand how the Charter of Rights and Freedoms affects your duties and responsibilities.
A breach of the Charter when dealing with accused persons, could have a profound effect on the outcome of an investigation as well as on the public perception of your role and how you carry it out.
CHARTER OF RIGHTS AND FREEDOMS
The Canadian Charter of Rights and Freedoms is printed in the back portion of your Criminal Code. Turn to that now and review the first portion of the lead off page. You will note that the Charter is Part I of another Federal Statute. What is the name of that statute?
Also note the other statute has two names. These are The Constitution Act, 1982 which is the name used in Canada, and the Canada Act, 1982 which is the name proclaimed in Britain for the United Kingdom. Chart 1 illustrates this development.
Chart 1
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Canadian Constitution |
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British Name |
Canadian Name |
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Canada Act - 1982 |
Constitution Act - 1982 |
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Royal Assent: March 29th, 1982 |
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Note also that the Charter guarantees a number of different categories of rights. Scan through the first few pages, then identify these categories.
OVERVIEW OF THE Charter of Rights and Freedoms
You should have identified the following categories of rights:
These categories cover the nucleus of the Charter.
Two sections that are especially pertinent and critical to law enforcement, are Section which states how these Rights and Freedoms will be enforced, and Section 52 which establishes the constitution of Canada (the Constitution Act, 1982) as the supreme law of Canada.
The important point about Section 52 is that it provides the courts the opportunity to strike down laws that are in conflict or inconsistent with the Charter of Rights and Freedoms. Remember, the Charter is simply Part I of the Constitution Act.
In respect to your duties as a police officer, by far the most important sections you will have to deal with in the Charter are Sections 7 to 14, which outline the Legal Rights of every citizen and resident in the country. Combined, these sections have had a profound effect on law enforcement in Canada and in fact have changed the way police work is performed since 1982.
DEFINITION: RIGHTS vs. FREEDOMS
Section 1 of the Charter guarantees specific rights and freedoms to everyone, subject to certain limits. Turn to Section 1 to find out what those limits are and describe them in your own words.
This simply means that in a democratic society, rights and freedoms can not be absolute. The rights of one individual or group must be qualified so as to protect the rights of others.
For example, freedom of speech is subject to the limits of libel and slander. People have a right to speak their mind, but that right ends when the speech becomes libelous.
Any limits imposed on these rights and freedoms as described in Section 1 of the Charter, must meet two basic tests. These are:
It is up to the courts to decide whether any limit meets these requirements. They must weigh the merit of the limitation against the well-being of society in general.
That brings us to the question, "What is the difference between a right and a freedom?" The distinction is simply this. A right guarantees intervention by the state when protection is required. A freedom, on the other hand guarantees no intervention by the state when an individual exercises that freedom.
It is interesting to note that Canadians have enjoyed the rights listed in the Charter for many years. In fact they were entrenched in legislation as far back as 1960 when Prime Minister John Diefenbaker introduced the Canadian Bill of Rights. What the Charter does is simply enshrine those rights in our constitution, the Supreme Law of the land.
Section 2 provides the framework of what we commonly refer to as a "Free society". It specifies those areas where freedoms are guaranteed.
Turn to Section 2 of the Charter now and read the four fundamental freedoms guaranteed under this section. Using your own words, list those freedoms and provide an example from your own experience of how that freedom has or is being exercised in our society.
List four (4) examples of Freedoms.
These freedoms are self-explanatory and do not require detailed elaboration here. But here are a few more examples to consider:
As a follow-up exercise, compare and discuss your examples of the four freedoms with at least one other colleague.
Section 3 outlines these rights which are more or less taken for granted in our country. They include the right to vote in a federal or provincial election as well as the right to run for election.
Section 4 further stipulates that there must be federal or provincial elections every five years except in time of war, when the term of office may be extended.
Section 5 further requires that parliament or a legislature must sit at least once every twelve months.
These again are self-evident, with the most important implication for police work being that no citizen can be refused the right to vote in a federal or provincial election.
Section 6 gives Canadian citizens the right to enter, remain in and leave Canada. This is expanded in Sub-section 2 which stipulates that citizens who have permanent residence in this country are free to change provinces if they wish and to pursue a livelihood in any province. This is subject to any provincial laws that might exist provided those laws are not discriminatory.
Sub-section 6(4) also permits provinces to develop laws or programs that favour socially or economically disadvantaged segments of their population.
It is interesting to note that between October 1979 and September 1980, two percent of our population, or 421,854 people, exercised their mobility rights by moving from one Province to another.
These are the rights that pertain most directly and frequently to police work and how you conduct yourself as a police officer. They include Sections 7 to 14 with which you should be completely conversant. Because of the significance of these sections to you, they will be covered separately in Module Ch-2. For now we will move ahead to discuss other rights covered in the Charter.
Read Section 15 (1) and (2). This section is the foundation on which equality protection is provided individuals under the law. It prohibits discrimination on seven specific grounds.
List the seven grounds for which discrimination is prohibited by the Charter of Rights and Freedoms.
Every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
Subsection 15(1) does not preclude any law, program or activity that has as its object, improving the conditions of disadvantaged individuals or groups.
Sections 16 to 23 describe the rights of Canadians to use and be educated in both official languages of the country. As public servants, the R.C.M.P. must be able to provide service in both official languages, and permit members to work in the language of their choice. These provisions will be of interest to individuals who wish to avail themselves of these rights.
Sections 25 to 30 describe the implications of the Charter to native groups, to multicultural groups and to both males and females.
Cultural diversity is built into the constitutional framework. While there is some disagreement about the precise meaning of certain aboriginal rights within the constitution, Section 25 establishes the validity of rights gained through original treaties, and of other rights negotiated since. This commitment is at the base of the Solicitor General's First Nation's policing policy.
The reference to gender equality in Section 28, reflects the commitment to eliminate discrimination and systemic barriers to equality.
Section 24(1) and (2) outline the recourse for individuals whose rights and/or freedoms may have been infringed or denied. Read those sections now and paraphrase their intent.
Now it's time to review what has been covered so far. Take a few minutes to look over the following summary, then try the SELF-CHECK that follows. If you find you understand the material, move forward to the Criterion Test to complete this module.
The Charter of Rights and Freedoms guarantees citizens, residents and visitors certain rights and freedoms subject only to reasonable limits that can be justified in a free and democratic society. These rights are:
These rights now form part of our Constitution, although they have been entrenched in law since 1960.
Rights are not absolute, but qualified to protect the rights of others.
Everyone has the following fundamental freedoms:
Every citizen of Canada has the right to vote in any Federal or Provincial election.
Every citizen of Canada has the right to enter, remain in and leave Canada and to pursue their livelihood in any province.
Guarantees a number of important rights and protections dealing with police and court actions.
These are the subject of Module Ch-2
All persons are equal under the law.
No one may be discriminated against because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
English and French are the official languages of Canada with equal status in all Canadian institutions.
Any violation of Rights or Freedoms to be remedied through the courts.
Evidence gathered in a manner contrary to the Charter, may be excluded.
Answer the following questions which you might typically encounter in your police role at some time. This will help you assess your understanding of basic Charter rights up to this point.
If your answers were consistent with those provided, you should be ready to complete the Criterion Test for this module. If you had any difficulty with any question, review that portion of the module, discuss the topic with a colleague or refer the matter to your facilitator.
CRITERION TEST - BASIC CHARTER RIGHTS
For each of the following situations, identify the section of the Charter of Rights and Freedoms and the relevant category of rights.
Sample: A person is refused the right to vote in a Federal by-election.
Answer: Sec. 3 - Democratic Rights
© GRC-RCMP
ecdp1012.doc
March 25, 1998
Revised: July 11, 2000
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