F. Claiming Charter Rights

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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To this point, the focus has been on whether the Charter applies to particular actions or entities, but another important application issue should also be mentioned: namely, who can invoke Charter rights? Some of the rights are framed as "everyone has the right" (for example, the fundamental freedoms of expression and religion in section 2 and the right to life, liberty, and security of the person in section 7). Others are available to "any person," as in the legal rights in section 11, or to an "individual," as in the equality rights in section 15. Some are available to citizens or permanent residents (for example, mobility rights in section 6 and minority-language education rights in section 23).

Some Charter rights have been held to be unavailable to corporations. For example, the equality rights in section 15 and the right to life,

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liberty, and security of the person in section 7 have been deemed to be rights that can be exercised only by human beings.55Corporations can, however, invoke certain rights that have been seen as appropriate for a corporate entity - for example, freedom of expression.56Even if a corporation cannot directly claim that its rights have been violated, it may have standing to raise a Charter issue in criminal or regulatory proceedings, where a law under which it is being prosecuted is alleged to be in violation of others’ Charter rights. For example, if a corporation is prosecuted under a law prohibiting Sunday shopping, it can challenge the law as a denial of freedom of religion even though section 2(a), the guarantee of freedom of religion, does not apply directly to a corporation.57The reason for this lies in the concept of the rule of law: that no one should be subject to prosecution under an unconstitutional law.58

[55] Irwin Toy v Quebec (Attorney General), [1989] 1 SCR 927 at 1001-3.


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