The legal framework
The Canadian Charter of Rights and Freedoms, part of the Constitution since 1982, binds federal and provincial governments and allows courts to invalidate legislation. Section 1 permits reasonable limits demonstrably justified in a free and democratic society. Section 33, the notwithstanding clause, allows a legislature to shield a law from several Charter rights for renewable five-year periods. Human rights codes, by contrast, do bind private parties.
Key points
| Charter | Binds government; courts may declare laws of no force or effect |
|---|---|
| Section 1 | Reasonable limits, assessed by the Oakes proportionality test |
| Section 33 | Notwithstanding clause, renewable every five years |
| Human rights codes | Federal and provincial; these do apply between private parties |
| Remedy | Section 24: any remedy the court considers appropriate and just |
| Commissions | Canadian Human Rights Commission and provincial equivalents |
| Oakes test | Structured proportionality analysis under section 1 |
| Section 24(2) | Evidence obtained in breach may be excluded |
| Court Challenges Program | Funds test cases of national significance |
In practice
- Exhaust domestic remedies first: no regional or international body will look at a case before that.
- Watch the deadlines — several are counted in months from the final domestic decision.
- Complain to the national human rights institution first: it is free and sometimes enough.
- Keep every decision, letter and acknowledgement: regional bodies will ask for the full record.
- Apply to the Court Challenges Program where the case raises a question of national significance.
Where to go
- Canadian Human Rights Commission or the provincial commission.
- Provincial legal aid.
- Court Challenges Program for cases of national significance.
Worth knowing
For discrimination by an employer, landlord or service provider, the human rights commission is the right forum — the Charter would not apply to a private party at all. For a dispute with an employer, landlord or service provider, the human rights commission is the correct forum. The Charter does not apply to private parties.
Official sources and links
- Canada.ca — official government portal
- Justice Laws Website — federal statutes and regulations