The Courts and the Constitution

Constitutional rights: The Constitution Act, 1982 forms the legal basis for the Canadian state. It incorporates the British North America Act, the statute that created Canada in 1867, and the Charter of Rights and Freedoms, which enshrines the legal, social, and political rights of Canadian citizens and minority groups. It guarantees freedom of speech and religion and the right to vote in elections, and prevents the government from discriminating against people on the basis of race, ethnic origin, gender, age or disability. The Charter also protects individuals from being searched or arrested without cause and guarantees a fair trial to those accused of crimes.

The role of the courts: The courts play an integral role in upholding Charter rights. In criminal cases, judges have the power to quash charges if the police abuse their powers and to reject evidence obtained by violating a suspect’s Charter rights. As well, citizens who believe a law or government action violates their Charter rights can apply to the courts for a ruling on its validity. The government must show that any violation of the rights of an individual or minority group is reasonable and justified in a free and democratic society. Judges have the power to strike down any law that violates the Charter, or they may order the government to amend the law to make it consistent with the Charter. Parliament and the provincial and territorial legislatures can use the Charter’s notwithstanding clause to overrule the courts and keep a discriminatory law in force, but governments have been reluctant to use this power to limit the constitutional rights of their citizens.

Under the constitution, the federal government is responsible for national issues such as defence and foreign policy, while the provinces and territories regulate education, health care and other fields of local importance. If a dispute arises over jurisdiction, the courts may be called upon to interpret the constitution and decide which level of government is responsible for implementing a policy or service.

Please note: The information contained in this section is intended to provide a simple overview of the Canadian Justice System. While every effort has been made to ensure the accuracy of the information, the Association makes no pronouncement on the practices & procedures employed across the country or on the likely outcome of any legal proceedings. The circumstances of any particular case may result in a modification or refinement of the law and its application. Nothing contained in this section is intended to be considered as legal advice and you should not rely upon it as such. For legal advice, please consult an authorized practitioner in your area.