Tag

Charter

3 articles

LegislationJune 22, 20266 min read
The Charter of Rights and Freedoms, in Plain English: What Each Section Actually Protects.
The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act, 1982. It guarantees a defined set of rights against government action, grouped into categories: fundamental freedoms (s. 2 — conscience and religion, expression, peaceful assembly, association); democratic rights (ss. 3–5 — the right to vote, maximum five-year legislative terms, annual sittings); mobility rights (s. 6 — to enter, remain in, and leave Canada, and to move between provinces); legal rights (ss. 7–14 — life, liberty and security of the person; protection against unreasonable search and seizure, arbitrary detention; rights on arrest and at trial; protection against cruel and unusual punishment); equality rights (s. 15); official-language rights (ss. 16–22) and minority-language education rights (s. 23); plus interpretive and general provisions (ss. 25–34, including protections for Indigenous rights and multicultural heritage). Two structural clauses govern how the rights operate. Section 1 lets governments justify limits on rights if they are "reasonable" and "demonstrably justified in a free and democratic society" — the framework applied through the Oakes test. Section 33, the notwithstanding clause, lets Parliament or a legislature override certain Charter sections for renewable five-year periods (covered in depth in our notwithstanding-clause explainer). The Charter binds government, not private individuals, and the courts enforce it — they can strike down laws that violate it.
LegislationJune 4, 20265 min read
The Notwithstanding Clause, in Plain English. What Section 33 Actually Does.
Section 33 of the Canadian Charter of Rights and Freedoms allows Parliament or a provincial legislature to expressly declare that a law operates "notwithstanding" certain Charter sections. The override applies to sections 2 (fundamental freedoms) and 7-15 (legal and equality rights). It does not apply to sections 3-5 (democratic rights), 6 (mobility), 16-23 (language and minority-language education), or 27-29 (other constitutional rights). The override lasts five years and is renewable. The clause was a key compromise that made the 1982 Charter possible — without it, several premiers would not have agreed to patriation.
LegislationMay 24, 20268 min read
The European Court of Justice Already Struck Down a Law Like Bill C-22. Here Is What It Found.
On April 8, 2014, the Court of Justice of the European Union (CJEU) handed down its decision in Digital Rights Ireland (joined cases C-293/12 and C-594/12), striking down the EU's Data Retention Directive as invalid. The Directive had required telecoms in member states to retain user metadata — phone numbers, IP addresses, location data, device identifiers — for six months to two years, on every customer, with police access on a production-order standard. The CJEU found this regime to be a "particularly serious" interference with the fundamental rights to private life and personal data protection under Articles 7 and 8 of the EU Charter, and that the interference failed proportionality because (1) the retention applied to all persons without distinction, (2) there was no relationship between the retained data and the threat the regime was meant to address, and (3) safeguards on access were insufficient. The ruling does not bind Canadian courts. The reasoning is highly persuasive and will be central to any future Canadian Charter challenge to Bill C-22.

The Charter of Rights and Freedoms, in Plain English: What Each Section Actually Protects.

The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act, 1982. It guarantees a defined set of rights against government action, grouped into categories: fundamental freedoms (s. 2 — conscience and religion, expression, peaceful assembly, association); democratic rights (ss. 3–5 — the right to vote, maximum five-year legislative terms, annual sittings); mobility rights (s. 6 — to enter, remain in, and leave Canada, and to move between provinces); legal rights (ss. 7–14 — life, liberty and security of the person; protection against unreasonable search and seizure, arbitrary detention; rights on arrest and at trial; protection against cruel and unusual punishment); equality rights (s. 15); official-language rights (ss. 16–22) and minority-language education rights (s. 23); plus interpretive and general provisions (ss. 25–34, including protections for Indigenous rights and multicultural heritage). Two structural clauses govern how the rights operate. Section 1 lets governments justify limits on rights if they are "reasonable" and "demonstrably justified in a free and democratic society" — the framework applied through the Oakes test. Section 33, the notwithstanding clause, lets Parliament or a legislature override certain Charter sections for renewable five-year periods (covered in depth in our notwithstanding-clause explainer). The Charter binds government, not private individuals, and the courts enforce it — they can strike down laws that violate it.

The Notwithstanding Clause, in Plain English. What Section 33 Actually Does.

Section 33 of the Canadian Charter of Rights and Freedoms allows Parliament or a provincial legislature to expressly declare that a law operates "notwithstanding" certain Charter sections. The override applies to sections 2 (fundamental freedoms) and 7-15 (legal and equality rights). It does not apply to sections 3-5 (democratic rights), 6 (mobility), 16-23 (language and minority-language education), or 27-29 (other constitutional rights). The override lasts five years and is renewable. The clause was a key compromise that made the 1982 Charter possible — without it, several premiers would not have agreed to patriation.

The European Court of Justice Already Struck Down a Law Like Bill C-22. Here Is What It Found.

On April 8, 2014, the Court of Justice of the European Union (CJEU) handed down its decision in Digital Rights Ireland (joined cases C-293/12 and C-594/12), striking down the EU's Data Retention Directive as invalid. The Directive had required telecoms in member states to retain user metadata — phone numbers, IP addresses, location data, device identifiers — for six months to two years, on every customer, with police access on a production-order standard. The CJEU found this regime to be a "particularly serious" interference with the fundamental rights to private life and personal data protection under Articles 7 and 8 of the EU Charter, and that the interference failed proportionality because (1) the retention applied to all persons without distinction, (2) there was no relationship between the retained data and the threat the regime was meant to address, and (3) safeguards on access were insufficient. The ruling does not bind Canadian courts. The reasoning is highly persuasive and will be central to any future Canadian Charter challenge to Bill C-22.