The Charter of Rights and Freedoms (“the Charter”)
The Charter guarantees the rights and freedoms of Canadians, subject only to reasonable limits prescribed by law, as can be demonstrably justified in a free and democratic society. When or if The Charter imposes a “limit” or restriction on the Charter rights of any Canadian, whether by statute or regulation or common law, the limit places an evidentiary onus on the government to prove that the limit on individual rights is reasonable and demonstrably justified in this free and democratic society.
The standard of proof is on the civil standard, that is, on a balance of probabilities, and not, on proof beyond reasonable doubt. Nevertheless, evidence is required to prove that the limit on any protected constitutional right is demonstrably justified in this free and democratic society. Failure to produce evidence that justifies the limit permits the court to find that the new law is unconstitutional and therefore of no force or effect.
The Charter guarantees several fundamental freedoms including freedom of conscience and religion, of thought, belief, opinion, and expression. This includes freedom of the press and other media communication. And the freedom of peaceful assembly and freedom of association. This means that the Charter protects all forms of expression, oral, written, pictorial, sculpture, music, dance or film.
This protection extends to those engaged in expression for profit and those who wish to express the ideas of others and to the recipients as well as the originators of the communication. Although public accessibility to the courts is not explicitly guaranteed by the Charter, access, having regard to its historical origins and purpose, is implicit as part of this guarantee.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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