Charter Claims - Administrative Law

Updated November 2016 

This How-To Brief is an introduction to some basic claims and remedies under The Charter of Rights and Freedoms (Charter).

1Introduction to Charter analysis

  1. The categories of Charter rights

    • There are six broad categories of Charter rights:
      1. Fundamental freedoms (s. 2)
      2. Democratic rights (ss. 3–5)
      3. Mobility rights (s. 6)
      4. Legal rights (particularly pertaining to the criminal process) (ss. 7–14)
      5. Equality rights (s. 15)
      6. Language rights (ss. 16–23)
       
     
  2. The Charter applies to government action

    • Consider if the claimant has standing or public interest standing to bring a Charter claim.
    Read Section 32 of the Charter: The Charter applies to the actions of the federal government and to the provincial governments only.
  3. Charter analysis must be meaningful, purposive, and contextual

    • A claimant must plead all the elements of the alleged Charter breach and the remedy sought.
    • Meaningful: Read Nova Scotia v. Martin at para. 29: The Supreme Court of Canada (SCC) determined that in order for the Charter to be meaningful, claimants are "entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available." Therefore, administrative tribunals may have jurisdiction to apply the Charter.
    • Read R v. Conway at paras. 81-82: There is a two part test to determine if an administrative tribunal can apply the Charter: (1) Can the administrative tribunal determine questions of law? (2) Can the administrative tribunal order the remedy sought?
    • Purposive: Read R v. Big M Drug Mart at para. 117: The purposive method is aimed at "securing for individuals the full benefit of the Charter protection."
    • Contextual: Read British Columbia (Attorney General) v. Christie at paras. 14 and 28: There was no evidence to demonstrate that the 7% provincial tax would adversely affect access to justice. The SCC reminds us that Charter analysis can only be made on a full evidentiary record.
     
  4. The Charter generally does not have extra-territorial application

    • Read R v. Hape and Canada (Justice) v. Khadr.
    • Canadian laws generally do not apply outside Canada unless: (1) Another state consents to their application on their territory, or (2) There is an exception under international law.
     

2Section 2 — Fundamental freedoms

Section 2 of the Charter states:

Everyone has the following fundamental freedoms:

A.     freedom of conscience and religion;

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

C.     freedom of peaceful assembly; and

D.    freedom of association.


Section 2(a) — Freedom of religion

  • Read R v. Big M Drug Mart; S.L. v. Commission scolaire des Chênes; and R v. N.S..

Section 2(b) — Freedom of expression

  • Test: (1) Does the activity or expression fall within the meaning of s. 2(b)? If yes, then (2) Does the government action restrict the freedom of expression?
  • Subsection 2(b) is the most frequently litigated part of s. 2.
  • Freedom of expression is inherent to democracy.
  • Read Irwin Toy Ltd. v. Québec (Procureur Général); Canada (Attorney General) v. JTI-Macdonald Corp.; R v. Bryan; Baier v. Alberta; Canadian Broadcasting Corp. v. Canada (Attorney General); and Saskatchewan (Human Rights Commission) v. Whatcott.

Section 2(d) — Freedom of association

  • Read Ontario (Attorney General) v. Fraser.

3Section 7 — Right to life, liberty and security of the person

Section 7 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.

  • Test: (1) Has there been a deprivation to the right to life, liberty and security of the person? If yes, then (2) Is that deprivation contrary to principles of fundamental justice?
  • A principle of fundamental justice (1) is a legal principle, (2) is fundamental to the way in which the legal system ought fairly to operate, and (3) must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
  • Section 7 has had a significant impact in criminal and non-criminal contexts.
  • Examples of rights protected in the criminal context include the right to remain silent, the right against self-incrimination, and the right to disclosure of the prosecution's case.
  • Examples of rights protected in the non-criminal context include the right to control one's body and the prohibition against deportation to death or torture.
  • Section 7 is of very limited application in the context of economic and commercial entitlements.
  • Section 7 is the backbone of rights found at ss. 8–14.

Read R v. D.B.; Charkaoui v. Canada (Citizenship and Immigration); Khadr v. Canada; Canada (Prime Minister) v. Khadr; and Canada (Attorney General) v. Bedford.

4Section 8 — Search and seizure

Section 8 of the Charter states:

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

  • Test: (1) Does the accused have a reasonable expectation of privacy? If yes, then (2) Was the police search conducted in a reasonable manner?
  • Read Hunter v. Southam Inc.; R v. Kang-Brown; R v. A.M.; R v. Clayton; R v. Cornell; R. v. Campbell; and R v. Vu.
  • The courts attempt to balance an individual's right to privacy and the government's interests, particularly in law enforcement.

5Section 10(b) — Right to counsel

Section 10(b) of the Charter states:

Everyone has the right on arrest or detention
b) to retain and instruct counsel without delay and to be informed of that right;

  • Test: The SCC held that s. 10(b) places three duties on authorities who detain:
    1. To inform the detainee of the right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel
    2. If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right to counsel
    3. To refrain from eliciting evidence from the detainee until a reasonable opportunity is given to speak with counsel
     
  • Read R v. Bartle; R v. Sinclair; and R v. McCrimmon.
  • If the police fail to observe the duties imposed by s. 10(b), any evidence that was obtained in violation of this section may inadmissible pursuant to s. 24(2) of the Charter.
  • Subsection 10(b) of the Charter does not require the presence of defence counsel during a custodial interrogation.

6Section 12 — Cruel and unusual treatment and punishment

Section 12 of the Charter states:

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

  • Read R v. Goltz; Suresh v. Canada (Minister of Citizenship and Immigration); and R v. Ferguson.
  • Torture is never an appropriate punishment, whatever the offense.

7Section 15 — Equality rights

Section 15 of the Charter states:

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.

(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.

  • Test: (1) Has there been differential treatment? If yes, then (2) Is the differential treatment based on an enumerated or analogous ground? And (3) Is there discrimination?
  • Examples of analogous grounds can include marital status and sexual orientation.
  • Read Law v. Canada (Minister of Employment and Immigration); R. v. Kapp; Canada (Attorney General) v. Hislop; and Quebec (Attorney General) v. A.
  • There are two ways of combating discrimination: (a) s. 15(1) prevents discriminatory distinctions that impact adversely on members of groups identified by s. 15(1); and (b) s. 15(2) preserves the right of government to implement programs to help disadvantaged groups, also known as affirmative action programs.

8Section 16–23 — Language rights

  • These sections entrench English and French as official languages in Canada.
  • Read Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada.

9Section 1 — Reasonable limits to Charter rights

Section 1 of the Charter states:

The 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.

  • Test: (1) Does the law or government action limit or violate a Charter right? If yes, then (2) The Crown must show that this limitation or violation is justified under s. 1 of the Charter: (i) There must be a sufficiently important objective to warrant overriding a Charter right; (ii) There must be a rational connection between the limit on the Charter right and the objective; (iii) The limit should impair the Charter right as little as possible (minimal impairment); and (iv) There should be a balance between the benefits of the limit and its deleterious effects.
  • Read R v. Oakes.Oakes sets out the test for establishing that a limit is demonstrably justified in a free and democratic society.
  • Rights are not absolute and sometimes it is necessary to limit them to protect collective interests.

1010. Charter remedies

  • Read s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and s. 57 of the Federal Courts Act, R.S.C. 1985, c. F-7: A claimant may need to serve the government with a notice of constitutional question.
  • A challenge to a law is brought pursuant to s. 52 of the Constitution Act, 1982 on the basis that a law is inconsistent with the Charter. If the court finds that a law violates the Charter, it can declare it invalid. Additional relief may flow such as the recovery of money paid under an unconstitutional statute.
  • A challenge to a government's action is brought pursuant to s. 24(1) of the Charter on the basis that the action violates the Charter. A s. 24(1) claim is invoked by the party alleging the violation of rights. Subsection 24(1) remedies can include a declaration of breach, an injunction, or damages.
  • Read City of Vancouver v. Ward: (1) The claimant establishes that a Charter right has been breached; (2) The claimant demonstrates that damages are a just and appropriate remedy (for example, compensation and deterrence for future breaches); (3) The government demonstrates that countervailing factors defeat the considerations that support a damage award and render damages inappropriate or unjust; and (4) If necessary, the court assesses the quantum of damages.
  • Read Doucet-Boudreau v. Nova Scotia (Minister of Education): Subsection 24(1) is "responsive to the needs of a given case," and "novel remedies" may be required. A s. 24(1) remedy can include informing the judge of construction progress.
  • Read Hislop at paras. 78–163: It may be appropriate to limit the retroactive effect of Charter remedies.

Index of case law from the Supreme Court of Canada

  1. Baier v. Alberta, 2007 SCC 31.
  2. British Columbia (Attorney General) v. Christie, 2007 SCC 21.
  3. Canada (Attorney General) v. Bedford, 2013 SCC 72.
  4. Canada (Attorney General) v. Hislop, 2007 SCC 10.
  5. Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30.
  6. Canada (Justice) v. Khadr, 2008 SCC 28.
  7. Canada (Prime Minister) v. Khadr, 2010 SCC 3.
  8. Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2.
  9. Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9.
  10. City of Vancouver v. Ward, 2010 SCC 27.
  11. Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62.
  12. Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
  13. Irwin Toy Ltd. v. Québec (Procureur Général), [1989] 1 S.C.R. 927.
  14. Khadr v. Canada, 2008 SCC 28.
  15. Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
  16. Nova Scotia v. Martin, [2003] 2 S.C.R. 504.
  17. Ontario (Attorney General) v. Fraser, 2011 SCC 20.
  18. Quebec (Attorney General) v. A., 2013 SCC 5.
  19. R v. A.M., 2008 SCC 19.
  20. R v. Bartle, [1994] 3 S.C.R. 173.
  21. R v. Big M Drug Mart, [1985] 1 S.C.R. 295.
  22. R v. Bryan, 2007 SCC 12.
  23. R. v. Campbell, 2011 SCC 32.
  24. R v. Clayton, 2007 SCC 32.
  25. R v. Conway, 2010 SCC 22.
  26. R v. Cornell, 2010 SCC 31.
  27. R v. D.B., 2008 SCC 25.
  28. R v. Ferguson, 2008 SCC 6.
  29. R v. Goltz, [1991] 3 S.C.R. 485.
  30. R v. Hape, 2007 SCC 26.
  31. R v. Kang-Brown, 2008 SCC 18.
  32. R v. Kapp, 2008 SCC 41.
  33. R v. McCrimmon, 2010 SCC 36.
  34. R v. N.S., 2012 SCC.
  35. R v. Oakes, [1986] 1 S.C.R. 103.
  36. R v. Sinclair, 2010 SCC 35.
  37. R v. Vu, 2013 SCC 60.
  38. Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11.
  39. S.L. v. Commission scolaire des Chênes, 2012 SCC 7.
  40. Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15.
  41. Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.

Resources

  • Eugene Meehan et al., The 2000 Annotated Canadian Charter of Rights and Freedoms (Toronto: Carswell, 2000).
  • Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms, 3rd ed. (Toronto: Irwin Law, 2005).
  • William J. Manuel, "Damages as a Remedy for Breach of Charter" in Regulatory Negligence: A Cautionary Tale: Essential Risk Management for Your Regulatory Clients (Toronto: Ontario Bar Association, Continuing Legal Education, 2001).
  • Morris Manning & Elaine Atkinson, "Key Developments in Constitutional Torts" in Bringing & Defending Litigation against the Crown: Managing the Altering Landscape in this High-Stakes Playing Field (Toronto: The Canadian Institute, 2010).
  • www.chartercases.com  

Statutes

  • Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11