Constitution Act & Charter Rights/Remedies

Constitution Act & Charter Rights and Remedies

Quick Answer: The Constitution Act, 1982 patriated Canada's constitution from the United Kingdom and entrenched the Canadian Charter of Rights and Freedoms as supreme law that all government action must respect. Rights can be limited under s. 1 if the limit is reasonable and justified (the Oakes test), and courts can remedy breaches under s. 24 — including excluding evidence under s. 24(2). Paralegals most often encounter Charter arguments in POA and summary criminal matters: unreasonable delay (s. 11(b)), unlawful search or detention (ss. 8–9), and right to counsel (s. 10(b)).

From the BNA Act to a Made-in-Canada Constitution

The Constitution Act, 1867 created Canada's federal structure but remained, formally, a British statute that only the UK Parliament could amend. The Constitution Act, 1982 changed that:

• Patriation: Canada gained full authority to amend its own constitution, ending the need for UK Parliament involvement.
• Amending formula (Part V): most constitutional amendments now require resolutions from Parliament and at least two-thirds of the provincial legislatures representing at least 50% of the population (the "7/50" general formula in s. 38), with some changes requiring unanimous provincial consent and others requiring only Parliament and the affected province.
• The Canadian Charter of Rights and Freedoms (Part I) was entrenched as supreme constitutional law.
• Section 35 recognized and affirmed existing Aboriginal and treaty rights of Indigenous peoples — a distinct constitutional guarantee outside the Charter itself.

Under s. 52(1), the Constitution — including the Charter — is "the supreme law of Canada," and any law inconsistent with it is of no force or effect to the extent of the inconsistency.

Structure of the Charter

The Charter applies to actions of government (legislatures, and public bodies exercising statutory authority) — it does not generally apply directly to private disputes between individuals. Key groupings relevant to paralegal practice:

Legal Rights (ss. 7–14): The Paralegal's Charter

These sections come up most often in the criminal, POA, and regulatory matters within paralegal scope:

• s. 7 — right to life, liberty, and security of the person, and the right not to be deprived of these except in accordance with the principles of fundamental justice (procedural fairness in a broad sense).
• s. 8 — right to be secure against unreasonable search or seizure. Relevant to challenges over how evidence was gathered in HTA stops, POA investigations, and regulatory inspections.
• s. 9 — right not to be arbitrarily detained or imprisoned. Frequently argued in traffic stop and roadside detention scenarios.
• s. 10(b) — right, on arrest or detention, to retain and instruct counsel without delay, and to be informed of that right.
• s. 11(b) — right to be tried within a reasonable time. This is one of the most litigated Charter rights in POA practice: unreasonable delay can result in a stay of proceedings.
• s. 11(d) — right to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal.
• s. 12 — right not to be subjected to cruel and unusual treatment or punishment.

Section 1: The Oakes Test

Governments can justify limiting a Charter right if the limit passes the Oakes test (from R. v. Oakes):

1. The law's objective must be pressing and substantial.
2. The means chosen must be proportional, which requires:
   • a rational connection between the limit and the objective;
   • minimal impairment of the right — the law goes no further than reasonably necessary; and
   • proportionality between the law's effects and its benefits.

This test explains why not every law that touches a Charter right is automatically unconstitutional — courts weigh whether the limit is a reasonable trade-off.

Remedies Under Section 24

Section 24 gives courts the power to remedy Charter violations, and it has two distinct parts:

• s. 24(1) — anyone whose Charter rights have been infringed may apply to a "court of competent jurisdiction" for "such remedy as the court considers appropriate and just in the circumstances." This is broad and flexible — remedies have included stays of proceedings, damages, and orders requiring government action.
• s. 24(2) — where evidence was obtained in a manner that infringed a Charter right, a court must exclude that evidence if, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. Courts apply the Grant test (from R. v. Grant), balancing: the seriousness of the Charter-infringing conduct, the impact on the accused's protected interests, and society's interest in an adjudication on the merits.

What Counts as a "Court of Competent Jurisdiction"?

Not every tribunal can grant every Charter remedy. A "court of competent jurisdiction" needs jurisdiction over the person, the subject matter, and the remedy sought. The Ontario Court of Justice, as a statutory court presiding over POA and summary criminal matters, has been recognized as having jurisdiction to grant many Charter remedies — including s. 24(2) exclusion of evidence and, in appropriate cases, a stay of proceedings under s. 24(1) — as part of its authority to control its own process, even though it cannot grant every form of constitutional relief available to a superior court.

Notice Requirements for Constitutional Questions

When a party intends to challenge the constitutional validity of a law, or seeks a remedy under s. 52 of the Constitution Act, 1982 (as opposed to a case-specific s. 24 remedy), the Courts of Justice Act (s. 109) requires notice of a constitutional question to be served on the federal Attorney General and the Attorney General of Ontario. This gives government the opportunity to participate and defend the challenged law. Paralegals need to recognize when a Charter argument crosses from a fact-specific s. 24 remedy (no notice required) into a broader challenge to a law's validity (notice required) — missing this distinction is a common procedural trap.

Practical Application: Charter Motions in POA Practice

Because paralegals frequently appear in POA prosecutions, the most exam-relevant Charter scenario is the s. 11(b) unreasonable delay motion. Courts assess delay against presumptive ceilings drawn from the framework the Supreme Court set out for criminal matters in R. v. Jordan, adapted to the POA context by subsequent case law; delay attributable to defence conduct or exceptional circumstances is generally subtracted from the total. A successful s. 11(b) motion results in a stay of proceedings — the charge is permanently halted, not merely dismissed on the merits. Other common motions include s. 10(b) right-to-counsel challenges after roadside detention and s. 8 challenges to the manner in which evidence (such as a breath sample or inspection result) was obtained.