The Constitution of Canada (the “Constitution”) consists of two parts. The first was originally called the British North America Act (the “BNA Act”) and was passed in 1867. For over a century, any changes to this piece of legislation could only be made with the approval of the British Parliament. In 1982, Canada severed its ties to Britain by bringing the Constitution home (known as repatriation). Since then, changes to the Constitution are made by Canada alone. The BNA Act was renamed the Constitution Act, 1867, and the second part of the Constitution, the Constitution Act, 1982, was passed. The first 34 sections of the Constitution Act, 1982 are known as the Canadian Charter of Rights and Freedoms (the “Charter”).
The Charter applies to both federal and provincial governments. The Charter can only apply to a private entity if that entity is controlled by the government or is implementing a government program. Other relationships, such as between two individuals or between an employer and an employee, are not subject to the Charter. Disputes in this context will generally take place under the Human Rights Code of the province in which they occur.
An individual (or group) can bring a Charter challenge in one of three situations. First, if an individual’s own rights have been violated, s/he has automatic standing to bring forward a claim. Second, if an individual is charged under legislation, s/he can argue that the legislation breaches someone else’s Charter rights. Third, an individual can obtain public interest standing to bring forward a claim on behalf of someone else (or a certain group of people) if s/he passes the public interest standing test.
The individual arguing that a right or freedom has been infringed has the burden of proving this to the courts. Once the courts accept that there has been an infringement, the government has the opportunity to justify the infringement using section 1 of the Charter. If the government fails the section 1 analysis, the courts will rule that the Charter has been violated. They will then award an appropriate remedy.
Remedies for a violation of the Charter include striking down the unconstitutional legislation, severing the unconstitutional part and having only that section of the law declared invalid, reading down the legislation (giving it a narrow interpretation), reading into the legislation (broadening it), keeping the law as it is but granting the individual a constitutional exemption from its application, and declaring the law unconstitutional but suspending its invalidity so that the government has time to fix the legislation. Courts can also grant declaratory relief (where the court will define the rights and obligations but not how to implement them), grant injunctions (where the court orders a party to act in a specified way), or order damages. In a criminal context, the court can also order that evidence be excluded if the accused’s Charter rights were breached.