Canadian Constitutional Law

Canadian Constitution & Charter Portal

A practical reference to the Constitution Acts, the Canadian Charter of Rights and Freedoms, constitutional history, major Charter provisions and leading Supreme Court decisions.

Constitution at a glance

What is Canada's Constitution?

Canada's Constitution is the supreme law of Canada. It is not a single document. It includes the Constitution Act, 1867, the Constitution Act, 1982 and the constitutional enactments and rules that form part of Canada's constitutional framework.

Part I of the Constitution Act, 1982 contains the Canadian Charter of Rights and Freedoms. Section 52(1) provides that the Constitution is the supreme law of Canada and that an inconsistent law is, to the extent of the inconsistency, of no force or effect.

Charter at a glance

The Charter is organized into rights and interpretive and enforcement provisions. The summaries below are intentionally simplified; the actual constitutional text controls.

Section 1

Reasonable Limits

Charter rights and freedoms are guaranteed subject only to reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society.

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Section 2

Fundamental Freedoms

Protects freedom of conscience and religion, thought, belief, opinion and expression, peaceful assembly, and association.

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Sections 3–5

Democratic Rights & Parliamentary Rules

Section 3 protects citizens’ voting and eligibility rights. Sections 4 and 5 address the maximum duration of legislative bodies and the requirement for at least one sitting each year.

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Section 6

Mobility Rights

Citizens have the right to enter, remain in and leave Canada. Citizens and permanent residents can generally move to and pursue a livelihood in any province, subject to the limits expressly set out in section 6.

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Section 7

Life, Liberty & Security of the Person

Protects life, liberty and security of the person and permits deprivation only in accordance with the principles of fundamental justice.

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Section 8

Search or Seizure

Protects everyone against unreasonable search or seizure. The application of section 8 depends on whether the state action creates an unreasonable intrusion into a protected privacy interest.

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Section 9

Arbitrary Detention

Protects everyone from arbitrary detention or imprisonment by the state. Whether a detention occurs and whether it is arbitrary depend on the legal and factual circumstances.

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Section 10

Rights on Arrest or Detention

Provides rights including being informed promptly of the reasons for arrest or detention, and the right to retain and instruct counsel without delay.

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Section 11

Rights in Criminal and Penal Matters

Protects multiple rights for persons charged with offences, including a fair and public hearing within a reasonable time, the presumption of innocence, reasonable bail where appropriate, and protection against certain forms of retrospective criminal punishment.

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Section 12

Cruel & Unusual Treatment or Punishment

Protects everyone against cruel and unusual treatment or punishment. Courts assess the constitutional question using the circumstances and the nature and effect of the treatment or punishment.

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Section 15

Equality Rights

Guarantees every individual equality before and under the law, including equal protection and equal benefit of the law without discrimination on the listed grounds and recognized analogous grounds.

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Section 23

Minority-Language Education

Gives qualifying Canadian citizens rights to minority-language primary and secondary education, including publicly funded facilities where the number of rights-holders warrants them.

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Section 27

Multicultural Heritage

Requires the Charter to be interpreted consistently with preserving and enhancing the multicultural heritage of Canadians. It is an interpretive provision rather than a standalone substantive right.

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Section 33

Notwithstanding Clause

Permits Parliament or a provincial legislature to expressly declare that an Act will operate notwithstanding section 2 or sections 7–15. A declaration normally expires after five years unless re-enacted.

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Charter categories

CategorySectionsWhat it covers
Fundamental freedoms2Religion and conscience, thought and expression, peaceful assembly, and association.
Democratic rights3–5Voting and eligibility for office, legislative duration, and annual legislative sittings.
Mobility rights6Entry, residence, movement and pursuit of a livelihood, subject to the constitutional limitations.
Legal rights7–14Life, liberty and security, search and seizure, detention, arrest, criminal-proceeding rights and related protections.
Equality rights15Equality before and under the law and equal protection and benefit without discrimination.
Official-language rights16–22Constitutional language protections concerning English and French in the contexts specified by the Charter.
Minority-language education23Specific education rights for qualifying Canadian citizens in the minority official language.
Enforcement and interpretation24, 25–33Remedies, constitutional interpretation provisions, application, and the notwithstanding clause.

Important structural point

The Charter is only one part of Canada's Constitution. The Constitution Act, 1982 also contains provisions on Aboriginal and treaty rights, equalization, constitutional conferences, amendment procedures and other matters.

The Charter itself also contains provisions that do not simply create individual rights, including section 27 on multicultural interpretation, section 32 on application, section 24 on remedies and section 33 on the notwithstanding clause.

Constitutional Timeline

Canada's constitutional development was gradual rather than occurring at one single independence date.

1867

British North America Act, 1867

The British North America Act, 1867 united the Province of Canada, New Brunswick and Nova Scotia in a federal union called Canada and distributed legislative powers between Parliament and the provincial legislatures. It is now known as the Constitution Act, 1867.

1931

Statute of Westminster, 1931

The Statute of Westminster recognized the legislative autonomy of the Dominions and greatly expanded Canada’s legal autonomy. Canada nevertheless retained a constitutional-amendment limitation, because the United Kingdom Parliament remained involved in amendments to Canada’s constitutional framework until patriation in 1982.

1982

Constitution Act, 1982 & Patriation

The Constitution was patriated to Canada in 1982. The Constitution Act, 1982 included the Canadian Charter of Rights and Freedoms, a domestic constitutional amending procedure, and constitutional provisions beyond the Charter itself.

Leading Charter cases

These cases illustrate how courts have interpreted major Charter provisions. They are examples, not an exhaustive case list.

Established the leading structured approach used by Canadian courts to assess whether a limit on a Charter right can be justified under section 1.

A foundational section 2 case concerning freedom of religion and the relationship between government legislation and Charter-protected freedom.

A foundational section 15 equality decision that helped establish the modern approach to discrimination and equality.

Important section 23 decision recognizing minority-language education rights and the principle that eligible minority communities can have management and control of educational facilities where the numbers warrant it.

A major equality-rights case in which the Supreme Court considered a provincial human-rights statute under the Charter and recognized the constitutional significance of equal protection in the statutory framework.

Constitutional remedies

Section 24(1): personal Charter remedies

A person whose Charter right has been infringed or denied may apply to a court of competent jurisdiction for a remedy that the court considers appropriate and just in the circumstances.

Section 52(1): constitutional supremacy

If legislation is inconsistent with the Constitution, the Constitution prevails. Courts can declare legislation, in whole or in part, to be of no force or effect to the extent of the inconsistency.

Who is bound by the Charter?

Section 32 applies to Parliament and the Government of Canada and to provincial legislatures and governments within their constitutional authority.

Charter application can also extend to certain entities or activities that perform governmental functions or implement government policy, depending on the circumstances and the applicable Supreme Court jurisprudence.

Official sources

Constitutional law is highly contextual. For an actual legal question, consult the constitutional text and authoritative jurisprudence rather than relying solely on a simplified summary.

Constitutional FAQs

These answers summarize the constitutional framework and are not a substitute for legal advice.

The Charter primarily applies to Parliament, the federal government, provincial legislatures and provincial governments under section 32. It is therefore not a general private-law code that applies to every dispute between private people or businesses. However, Charter obligations can also arise where an entity is part of government or performs a governmental function or implements a government program in circumstances recognized by Charter jurisprudence. Private disputes may instead be governed by ordinary civil law, employment law, contract law, or human-rights legislation.

Permanent residents receive many Charter protections, including the legal rights in sections 7–14, equality rights in section 15, and the mobility rights in section 6(2). Some Charter rights are expressly limited to citizens: section 3 democratic rights belong to citizens, section 6(1) gives citizens the right to enter, remain in and leave Canada, and section 23 minority-language education rights are specifically granted to citizens who satisfy its eligibility rules.

Section 24(1) allows a person whose Charter rights have been infringed or denied to apply to a court for a remedy that is appropriate and just in the circumstances. Section 52(1) establishes constitutional supremacy and makes an inconsistent law of no force or effect to the extent of the inconsistency. Section 24 remedies are often personal remedies, while section 52 addresses the constitutional validity or operation of legislation.

Section 33 permits Parliament or a provincial legislature to expressly declare that an Act or provision will operate notwithstanding section 2 or sections 7–15 of the Charter. A declaration ceases to have effect after five years unless it is re-enacted. Section 33 does not apply to every Charter provision; for example, it does not list sections 3, 6, 23 or 24.

Section 23 does not create an unrestricted right for any parent to choose English or French schooling. It applies to Canadian citizens meeting specified language or education-history conditions, including citizens whose first language learned and still understood is that of the English or French linguistic minority population in the province, and certain citizens whose primary or secondary instruction in Canada was in English or French. The right applies where the number of eligible children is sufficient to warrant minority-language instruction, and greater numbers can support stronger institutional rights.

Section 1 guarantees Charter rights subject only to reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society. A rights limitation therefore requires more than a government simply asserting a policy objective. Canadian constitutional law assesses whether the limit is legally authorized and constitutionally justified under the section 1 framework.