The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms enshrines our basic rights into the Canadian Constitution, which is the highest law in Canada. The Charter applies only to government and to laws and policies and decisions made by government. It does not apply to the acts or decisions of private citizens or non-governmental agencies.
The Charter grants fundamental rights such as:

  1. Freedom of expression
  2. Freedom of religion
  3. The right to life, liberty and security of the person
  4. The right to be free from unreasonable search and seizure
  5. Equality rights
  6. Mobility rights

The Charter is important because it sets the standard for government actions and limits how far governments can impinge on the lives of individuals through laws and policies. Charter rights also have a wider, indirect importance. They set the tone for what is and what is not acceptable practice in Canada, regardless of whether the organization is subject to the Charter. Thus, although no organization in the private sector is required to comply with the Charter, organizations may look to the rules emerging from Charter cases to guide their conduct.

Although the Charter does not contain the word “privacy”, and does not include a freestanding “right to privacy,” privacy interests have been recognized to be at the root of some of the protections granted by the Charter. 

For example section 8 of the Charter grants a right to be free from unreasonable search and seizure. The Supreme Court of Canada has decided that the source of the section 8 right is that citizens have a reasonable expectation of privacy in a free and democratic society. This reasonable expectation is protected by, for example, requiring law enforcement officers to obtain “prior authorization” – that is, a search warrant – before carrying out searches of private property.

Privacy rights have also been found to be part of the right to life, liberty and security of the person contained in section 7 in relation to control of our bodies or of our personal information. (1) The liberty right in section 7 protects an individual’s privacy when making the kinds of fundamental life choices which are at the core of individual dignity and independence, so that they can be made without interference from the state. (2) The right to privacy and to maintain the privacy of information about ourselves has been recognized as an essential aspect of liberty in a free and democratic society. (3) However, the extent of our constitutional informational privacy rights outside of the criminal law context is still a fairly new area of the law and the law is still developing.

In all cases, Charter rights are not absolute; they must be balanced against other important societal goals, such as the prevention of crime, or the protection of other people’s rights. So even in cases where it is shown that a particular law or government action violates an individual’s right to privacy, it must still be decided whether that right outweighs other important values.   This balancing is required by section 1 of the Charter, which requires that any violation of a Charter right must be demonstrably necessary in a free and democratic society. The test developed to assist the court in applying this section requires the court to ask itself four questions:

  1. Is the objective of the law important enough to warrant violating a Charter right?
  2. Is the law effective in reaching this objective?
  3. Does it violate the right as minimally as possible?; and
  4. Does the goal in achieving the objective outweigh the harm caused by the violation of the right?

It is only legal for the government to violate a Charter right if the answer to all four questions is ‘yes’.

Using the Charter to Enforce or Protect your Privacy Rights

Although there are a number of decisions that recognize the right to privacy in the Charter, it is still extremely difficult to use the Charter to protect your right to privacy. Remember that the Charter applies only to laws and government policies, not to the actions of any person or organization in the private sector.

If you have been affected by a law or policy and think that your Charter rights have been violated, you must go to court and challenge the law or policy. You can ask the court to strike down the law or policy that you say violated your rights. You will have to present your argument to the judge in open court. The government lawyer will defend the law or policy. The arguments are generally quite technical and often involve detailed consideration of prior court decisions on similar or related issues (precedents). If you win, the government is likely to appeal to a court of appeal in order to obtain a decision of the highest court possible. Many thousands of dollars and many years of effort are generally required to have the issue finally decided.

If you are considering challenging a law or policy on Charter grounds, it is a good idea to consult a lawyer, or to try to join with other individuals or organizations who will support you or your cause and who can share the financial and other burdens involved in a Charter challenge.

(1) Cheskes v. Ontario (Attorney General), 2007 CanLII 38387 (ON S.C.) paragraph 78 – 82, citing R. v. Hebert, 1990 CanLII 118 (S.C.C.), [1990] 2 S.C.R. 151; R. v. Broyles, 1991 CanLII 15 (S.C.C.), [1991] 3 S.C.R. 595, cited in Dagg v. Canada (Minister of Finance), 1997 CanLII 358 (S.C.C.), [1997] 2 S.C.R. 403 at paras. 65-66. See also M.(A).v.Ryan, 1997 CanLII 403 (S.C.C.), (1997) 4 C.R.(5th) 220 (S.C.C.);  see also Cash Converters Canada Inc. v Oshawa (City), 2007 ONCA 502 (CanLII), 2007 ONCA 502 at para. 29 – 30;  see also  R. v. O’Connor 1995 CanLII 51 (S.C.C.),

(2) Cheskes v. Ontario (Attorney General), 2007 CanLII 38387 (ON S.C.) paragraph 87, citing R. v. Malmo-Levine, 2003 SCC 74 (CanLII) , [2003] 3 S.C.R. 571 at para. 85, quoting Godbout v. Longueuil (Ville), 1997 CanLII 335 (S.C.C.) , [1997] 3 S.C.R. 844 at para. 66. Also see Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII) , [2000] 2 S.C.R. 307 at para. 83, at para. 49;  B.(R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (S.C.C.) , [1995] 1 S.C.R. 315 at 368-9;  R v. Morgentaler, 1988 CanLII 90 (S.C.C.) , [1988] 1 S.C.R. 30;

(3) (R. v. O’Connor, 1995 CanLII 51 (S.C.C.), at para. 120