The Canadian Charter of Rights and Freedoms sets out and protects the rights and freedoms to which every individual is entitled. However, these rights may be violated by the State, whose role is to ensure their protection. What remedies will be available to a citizen who has suffered an infringement of his or her rights?
The Charter provides for two distinct remedies, depending on whether the violation is the result of a statute or an act of government.
Violation under law
The Constitution is the supreme law of Canada, and it renders inoperative any provision or law that contradicts it. The Constitution Act gives the courts the power to strike down a statute, regulation or legislative provision that violates a right guaranteed by the Canadian Charter, as it is part of the Constitution.
It will therefore be possible for a person whose rights have been violated or neglected by a rule of law to apply to the courts to have it invalidated.
Violation Arising from Government Act
This remedy will be used if the violation of the human rights stems from an act of a public official, such as a public servant, a police officer, a Crown prosecutor or a public prosecutor. This is an important remedy to preserve the fairness of the trial.
The Canadian Charter provides for a remedy that applies not only in the case of a violation or denial of a right, but also in the case of a fear of such a violation or denial for the future. It will be up to the victim to convince the court of the violation or fear of violation of his or her right according to the balance of probabilities.
Remedies awarded by the court
If the court finds that a right has been violated, it then has a discretion to grant the victim “such remedy as it considers appropriate and just in the circumstances.”
This could be:
- Damages;
- A declaratory remedy, i.e., a declaration confirming the violation of Charter rights, while leaving it up to the government to determine how to remedy it;
- An injunction, i.e. a court order that the act that violates the victim’s right be stopped;
- A reduced sentence;
- A stay of proceedings. It should be noted that this is a means rarely granted and only as a last resort, only when the judge concludes that continuing the proceedings would be an attack on the integrity of the justice system.
Evidence obtained in violation of a Charter right
The Canadian Charter provides for the exclusion of evidence obtained in violation of a Charter right. This stems from the objective of maintaining the good reputation of the administration of justice: the courts are not to tolerate or encourage illegal actions of the State by admitting evidence obtained in violation of the Constitution.
For example, the right to be secure against unreasonable search and seizure is set out in section 8 of the Canadian Charter. For example, if a police officer conducts an unreasonable search, the court may order that the evidence seized during the search is inadmissible.
In Collins, the Supreme Court of Canada held that the exclusion of the evidence will be granted if two elements are met:
- The evidence must have been obtained under conditions that violate the Charter;
- Its admission must be likely, in the circumstances, to bring the administration of justice into disrepute
In determining whether the administration of justice has been brought into disrepute, the Court will consider the impact of the admission of the evidence on the fairness of the trial, the seriousness of the breach, and the effect of the exclusion of the evidence on the consideration of the administration of justice.
The protection of rights and freedoms guaranteed by the Canadian Charter is essential to ensuring justice and fairness in our society. Our team of criminal lawyers are dedicated to defending your constitutional rights and representing you with rigor and integrity in the face of any violation.
If you believe that your rights have been violated, contact us immediately for a full assessment of your situation and to explore possible remedies.