Section (24 - 26)

Auswah Imaan
Jan 28, 2021
2 min read

Updated: Jan 29, 2021

Section 24 (1) - Remedies

This section permits a person whose rights have been infringed to apply to a “court of competent jurisdiction” for“ such remedy as the court considers appropriate and just in the circumstances”. Within certain jurisdictional limits, the court’s exercise of its remedial power is discretionary.

Section 24 (2) - Exclusion of evidence

The purpose of section 24(2) is to maintain the good repute of the administration of justice. Section 24(2) looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. This inquiry is an objective one, which asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

The focus of section 24(2) is not only long-term, but is also prospective and societal. Section 24(2) starts from the proposition that the fact of the Charter breach means damage has already been done to the administration of justice and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Further, the section is not aimed at the impact of state misconduct upon the particular criminal trial, such as punishing the police or providing compensation to the accused, but rather at the broad impact of admission of the evidence on the long-term repute of the justice system.

Section 25 - Aboriginal and treaty rights

Section 25 of the Canadian Charter of Rights and Freedoms is the first section under the heading "General" in the Charter, and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the Charter. While section 25 is also the Charter section that deals most directly with Aboriginal peoples in Canada, it does not create or constitutionalize rights for them.

The Charter is a part of the larger Constitution Act, 1982. Aboriginal rights, including treaty rights, receive more direct constitutional protection under section 35 of the Constitution Act, 1982.

In other words, the Charter must be enforced in a way that does not diminish Aboriginal rights. As the Court of Appeal for Ontario held in R. v. Agawa (1988), the section "confers no new rights," but instead "shields" old ones.

Section 26 - Existing rights and freedoms in Canada continue

The purpose of this section is to ensure that any rights or freedoms not expressly spelled out in the Charter but which exist otherwise, are not extinguished because of that omission. It furthermore underscores the point that the Charter was intended to enlarge rights and freedoms and not to extinguish or restrict them. Section 26 is to serve as a guide in interpreting other sections of the Charter and therefore, in and of itself, it cannot support a constitutional challenge.

Like other provisions within the section 25 to 31 bloc, provides a guide in interpreting how the Charter should affect Canadian society. The section's particular role is to address rights not covered by or mentioned in the Charter.