Fundamental Freedoms - The Charter of Rights and Freedoms
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Enforcement
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What it Means

If a court finds that your Charter rights have been violated and the violation is not justified under section 1 of the Charter (see 'Guarantee of Rights and Freedoms') what can be done?

If a Law Violates the Charter

The Charter is a part of Canada's Constitution, and is included in the Constitution Act, 1982. Section 52(1) of the Constitution Act, 1982 gives courts the power to say that a law that violates the Charter is not valid. You can ask a court to make such a declaration. When applying section 52, a court might:

  • strike out the part of the law that violates the Charter
  • interpret a law narrowly so that it fits Charter rights
  • 'read in' features to the law so that it meets Charter requirements
  • declare that you are not covered by the law that violates your Charter rights (a 'constitutional exemption')

Where Government Action Violates the Charter

Sometimes a law itself will not violate the Charter, but action taken under the law does. In such cases there is no reason to ask a court to declare the law unconstitutional. But you can ask a court to use its power under section 24 of the Charter. Under this section, a court can take any action that fits the situation - whatever is 'appropriate and just.' Here are some types of action a court can take under section 24:

  • Declarations (Statement)
    A court can make a statement about rights and duties. This is called a declaration. When a court makes a declaration, it will leave it up to the people involved to work out what action needs to be taken to respect the rights and duties.
  • Injunctions (Making someone act a certain way)
    A court can order someone to stop acting in a certain way or make them take action. This kind of order is called an injunction. Occasionally, courts will continue to supervise such a situation. For example, when a court found that a provincial government was violating the Charter for not providing French language schools, the judge ordered that the province make its best efforts to build school facilities and report back to him on the progress.
  • Damages (Money)
    Damages are a court order for the payment of money to someone who has been injured. Orders for financial compensation are rarely made in Charter cases. For example, damage to dignity or reputation can be difficult to measure in dollars. A court will rarely order money to be paid to a person whose Charter rights were violated - particularly if a government was not intentionally abusing its power.

If Charter Rights Are Violated in a Criminal Case

  • Stopping the Criminal Prosecution
    If there is a serious violation of a person's Charter rights in a criminal case, a court can order a new trial. If even a new trial cannot address the problem caused by the Charter violation - such as unreasonable delay in hearing a case - a court can completely stop the criminal proceeding.
  • Excluding Evidence Under section 24(2),
    if evidence was obtained in a way that violated a person's Charter rights, a court can decide that the evidence cannot be used. A court can only do this if using the evidence would "bring the administration of justice into disrepute." This power to exclude evidence may be used in cases where, for example, police violated section 8 of the Charter by doing an unreasonable search.

W.L. Mackenze King, 1906-7. In any civilized coummunity, private rights should cease when they become public wrongs.
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