Section 1 of the Canadian Charter of Rights and Freedoms
This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as child pornography (e.g., in R v Sharpe),[1] hate speech (e.g., in R v Keegstra),[2] and obscenity (e.g., in R v Butler).
[3] When the government has limited an individual's right, there is an onus upon the Crown to show, on the balance of probabilities, firstly, that the limitation was prescribed by law namely, that the law is attuned to the values of accessibility and intelligibility; and secondly, that it is justified in a free and democratic society, which means that it must have a justifiable purpose and must be proportional.
Under the heading of "Guarantee of Rights and Freedoms", the section states: 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.The inquiry into whether the limitation was "prescribed by law" concerns the situation where the limitation was the result of some conduct of a government or its agents and whether the conduct was authorized by accessible and intelligible law.
The Court articulated when the authorization would fail for being too vague as "where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances".
In Little Sisters Book and Art Emporium v Canada, the Supreme Court found that the conduct of a border official in singling out homosexual from heterosexual reading materials was not authorized by any law.
In R v Big M Drug Mart Ltd (1985), Dickson asserted that limitations on rights must be motivated by an objective of sufficient importance.
Specifically, the Supreme Court found an Alberta law unconstitutional because it extended no protection to employees terminated due to sexual orientation, contradicting section 15.
This step asks whether the legislation's limitation of the Charter right has a rational connection to Parliament's objective.
[7] An example of the rational connection test being failed can be found in R v Morgentaler (1988), in which Dickson held that a particular Criminal Code abortion prohibition should be struck down partly because of a breach of health rights under section 7 and an irrational connection between the objective (protecting the fetus and the pregnant woman's health), and the process by which therapeutic abortions were granted.
Professor Hogg has argued that merely satisfying the first three criteria of the Oakes test probably amounts to automatic satisfaction of the fourth criterion.
For Justice William McIntyre, the Oakes test was too high a standard for equality rights, which was a complex issue since governments must distinguish between many groups in society, to create "sound social and economic legislation".
"[13] In Doré v Barreau du Québec (2012), the Supreme Court of Canada found that the Oakes test should not apply to administrative law decisions that impact the Charter rights of a specific individual.
This general limitations clause definitely makes the Canadian Charter distinct from its United States counterpart, the Bill of Rights.
The Bill of Rights entrenched in the Constitution of South Africa in 1996 also contains a clause comparable to the Charter's section 1 and the ECHR's articles 8 to 11.
Namely, the section 9.1 statements about how one should use rights does not mention legislatures, and thus the Quebec Charter has relevance to private law.
At around the time of the centennial of Canadian Confederation in 1967, Liberal Attorney General Pierre Trudeau appointed law professor Barry Strayer to research enshrining rights into the Constitution.
Strayer's report for the Trudeau government advocated a number of ideas which were later incorporated into the Charter, including allowing for limits on rights.
An early version of the section guaranteed rights "subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government".
This wording sparked debate over what government actions could be "generally accepted", with civil libertarians arguing that the clause would render Charter rights impotent.
In their book The Charter Revolution & the Court Party, Alberta politician Ted Morton and Professor Rainer Knopff allege judges have a greater role and more choice in shaping policy, and quote former Chief Justice Antonio Lamer as stating that a Charter case, "especially when one has to look at Section 1 ... is asking us to make essentially what used to be a political call.
Sensing a long night, Bakan armed himself with a bottle of sherry and set about constructing the now famous three prong balancing test.Bakan was supposedly influenced by US case law, which Morton and Knopff write should disappoint "Those who praise the section 1/Oakes Test as a distinctively Canadian approach to rights litigation."
