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How to bring a charter challenge

Since the introduction of the Canadian Charter of Rights and Freedoms in 1982, there has been a trend to challenge existing human rights standards, employment standards and other rights to ensure that they comply with charter values.

What are the fundamental charter values?

There are six broad categories of charter rights. They are:

  • Fundamental freedoms (s. 2)
  • Democratic rights (ss. 3–5)
  • Mobility rights (s. 6)
  • Legal rights (especially as they relate to the criminal process) (ss. 7–14)
  • Equality rights (s. 15)
  • Language rights (ss. 16–23)

All legislation has to be in compliance with the charter, otherwise it can challenged in court.

How do I know if I have a charter case?

The charter guarantees equal rights for all no matter their background, religion, sex, national or ethnic origin, gender identity, race, age, and disability. The charter also guarantees that a person has the right not to be deprived of any constitutionally granted freedoms, such as being able to move around within Canada.

If you think a rule that you are subject to under applicable legislation is discriminating against you, or else is invalid or inoperable, then you can bring a charter challenge. However, that conclusion should be reached after consulting with a lawyer.

How does a court or tribunal determine issues of constitutionality?

The court often has something referred to as a “test” for the category of charter rights. A test is basically questions the courts ask that will lead to conclusions on whether the legislation or rule is constitutionally valid.

For example, if someone were to bring a charter challenge under s. 15 (equality rights), the three questions that are asked by the court when they listen to such a challenge are:

  • Has there been differential treatment?
  • If yes, then is the differential treatment based on an enumerated or analogous ground? and;
  • Is there discrimination?

What is the process?

A charter challenge doesn’t have to be raised at the highest court levels. A person can also raise a charter challenge at the tribunal level. However, it should be started at a lower level court or tribunal and not later in the process.

When raising a charter challenge, the party raising the challenge often has to give notice to the tribunal or court that they are raising such a challenge to the constitutional validity or legislation or rules and regulations.

There is usually a court or tribunal form a person fills out and submits when raising a constitutional question. For example, in Ontario, this form is called Form 4F “Notice of Constitutional Question”. Other provinces and territories have their own forms that inform the courts that a constitutional question is going to be heard, although they are likely similar to the Ontario form. Also note that notice often also has to be sent to the government.

Notice for raising a constitutional question is often mandated in order to give the court and tribunal a proper heads up about what legislation or government action is being challenged, in what circumstances, and for what reasons.

Failing to provide notice within a reasonable time could either delay proceedings or the question may not be heard at all.

Once the notice is submitted, the party just follows all the other rules of the tribunal or court as usual.

It’s quite difficult and complicated to make out a charter case. If you think you may have a question of constitutional validity on your hands, you should consult with a lawyer as soon as possible.

Read more:

Canadian Charter of Rights and Freedoms

Charter Claims - Administrative Law