Custom Search
Top Stories
Go to Site Index See "Top Stories" main page
CONTRIBUTION · 15th February 2011
Terrance E. Hudson
I am always surprised at how easily people are willing to condone misconduct by the state and to blame the victim for injuries, personal or otherwise, arising from state misconduct.

The Canadian charter of Rights and Freedoms provides ALL Canadians with guaranteed rights that are to govern the conduct of state actors, be they police officers, government officials or the government itself. These Rights are a fundamental aspect of any civilized democracy and form the foundation of respect for the individual in our society. The Charter provides in part:

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Guarantee of Rights and Freedoms

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

Fundamental freedoms

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

Legal Rights

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Proceedings in criminal and penal matters

11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Treatment or punishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Self-crimination

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Equality Rights

Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.


States like Germany in WWII and Russia during the Communist era did not respect the Rule of Law and the result was the murder of millions upon millions of people without any investigation or second thought. People became less than human and were "disposed" of as a "nuisance" as a result of the political agendas of governments run wild.

In its decision in British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007 1 S.C.R. 873] the Supreme Court of Canada established that:

"The rule of law is a foundational principle. This Court has described it as 'a fundamental postulate of our constitutional structure' (Roncarelli v. Duplessis, 1959 CanLII 50 (S.C.C.), [1959] S.C.R. 121, at p. 142) that 'lie[s] at the root of our system of government' (Reference re Secession of Quebec, 1998 CanLII 793 (S.C.C.), [1998] 2 S.C.R. 217, at para. 70). It is explicitly recognized in the preamble to the Constitution Act, 1982, and implicitly recognized in s. 1 of the Charter, which provides that the rights and freedoms set out in the Charter are 'subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. And, as this Court recognized in Reference re Manitoba Language Rights, 1985 CanLII 33 (S.C.C.), [1985] 1 S.C.R. 721, at p. 750, it is implicit in the very concept of a constitution.

The rule of law embraces at least three principles.

The first principle is that the 'law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power': Reference re Manitoba Language Rights, at p. 748.

The second principle 'requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order': ibid., at p. 749.

The third principle requires that 'the relationship between the state and the individual . . . be regulated by law': Reference re Secession of Quebec, at para. 71. (See also British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 (CanLII), [2005] 2 S.C.R. 473, 2005 SCC 49, at para. 58; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), [2007] 1 S.C.R. 350, 2007 SCC 9, at para. 134.)

The Charter of Rights is an essential guarantee of individual rights and freedoms so as to prevent the re-occurrence of these types of abuses and totalitarian forms of government. In Canada we have become complacent and "expect" that our state will always act with integrity and respect for the individual. We have become complacent about the exercise of our democratic rights and the need to hold the government and its representatives accountable for their actions.

The BC Civil Liberties Association is just one organization of many that seeks to hold the government accountable for their actions. We all need to be grateful, in my opinion, that there are organizations like the BCCLA that are willing to "take it on the chin" to stand up for all of us who may otherwise face unwanted and unwarranted state interference with our individual liberties.

Civil liberties not for all
Comment by David on 20th April 2011
In theory, the Charter of Rights and Freedoms protects citizens from the arbitrary actions of the state. However, in practice, those who are most likely to suffer state abuse i.e. those in the lower socio-economic classes are the least likely to able to advance a claim under the Charter against government. The reason is simple: in British Columbia, to make a claim under the Charter against the government, you must bring your claim to Supreme Court. But only the wealthy (or the very lucky, those who find a free lawyer) can afford to bring the claim to Supreme Court. Consequently, I would estimate that 95% of all Charter infractions by government in BC are never prosecuted in a civil claim. Meanwhile, criminals are routinely let off the hook in Provincial Court due to Charter defences. So, if you commit a crime, the Charter will apply in Provincial Court, but if you are a victim who has suffered horribly from government abuse, you are banned from making a claim in Provincial Court and teh perpetrators get off scot-free.