Judicial Acceptance of Limits on Rights

• Author: Kent Roach
• Pages: 155-173

155

Judicial Acceptance

of

Limits

on

Rights

Many

people probably nodded with agreement when they read

Justice

Bastarache's

comments that

the

Court

"was maybe seen

as

being undu-

ly

favourable

to the

native position

in all

cases,

and

that

it

sort

of has an

agenda

for

extending these rights,

and

that

it has no

concern

for the

rights

of

others

...

you

have fishermen

who are not

very wealthy

and

whose

rights might have been [perceived

to

have been] overridden

by

the

rights

of

natives

too

easily

by the

court."1

People tend

to

think

of

courts

as a

place where rights trump over

all

other

interests.

If

judges

decide

what constitutes

a

right

and if

rights

are

absolute, then

the

Court

will

override competing rights

and

interests.

And

there

are

examples

of

cases

in

which

the

Supreme

Court

has

appeared

to be

oblivious

to

com-

peting

rights.

How

else

can you

explain

its

decisions

to

strike down

restrictions

on

Sunday shopping, tobacco advertising,

and

some

of its

more

controversial decisions recognizing

the

rights

of the

accused

and

of

Aboriginal people?

Critics

of

judicial activism

fear

that judges will impose absolute

rights

on

society without regard

to

competing rights

and

social interests.

Conservative

critics tend

to

worry about

the

inflation

of

rights, group

rights

and the

rights

of the

accused. They

fear

that legalistic

and

absolute

rights

talk will make

it

difficult,

if not

impossible,

to

accept

the

compromises that

are

often

necessary

in a

functioning

and

civil democ-

racy.

Progressive critics worry that judges will impose

a

liberal

and

indi-

vidualistic

view

of

rights that conceives

of the

state

as the

enemy,

a

view

that leaves little room

for the

promotion

of a

sense

of

social responsi-

bility

and

duty. Much

of the

anxiety

about judicially enforced

rights

comes

from

the

common opinion that rights

are

absolute "trumps."

The

First

Amendment

of the

American

Bill

of

Rights

supports this absolutist

view

of

rights when

it

declares that Congress shall make

no law

abridg-

ing

freedom

of

speech.

As

I

suggest throughout

this

book, however,

the

Canadian

Charter

of

Rights

and

Freedoms

is

fundamentally

different

from

the

American

Bill

of

Rights.

Instead

of the

First Amendment,

we

have

a

more modest sec-

tion

1,

which provides that

the

Charter

"guarantees

the

rights

and

free-

doms

set out in

it,"

but

subject

"to

such reasonable limits prescribed

by

law

as can be

demonstrably

justified

in a

free

and

democratic society."

This approach draws

on the

modern experience

of

allowing necessary

Chapter 9

156

PART

2: THE

EXTENT

OF

JUDICIAL

ACTIVISM

and

proportional limits

on

many rights,

but

generalizes

it by

allowing

courts

to

accept limits

on

every right

for a

broad range

of

reasons.

If a

good

idea gets copied, section

1 is a

good idea.

It has

been

duplicated

in

recent bill

of

rights

in New

Zealand,

Israel,

and

South

Africa,

and the

Supreme Court

of

Canada

has

invented

a

process

of

justifying limita-

tions

on

Aboriginal

and

treaty rights even though section

1

does

not

apply

to

those rights. Critics

of

judicial activism

in

Canada must come

to

grips with

the

brooding omnipresence that

the

limitation provision

casts

on

constitutional rights.

It

will

not do to

pretend that this

is

America,

where once

a

court

has

defined

a

right

it is

often

absolute

and

final.

Cries that

my

rights have been violated play better

on the

nightly

news than

in

Canadian courts.

In

court, judges will

ask

whether

the

gov-

ernment

had a

good

reason

for

violating rights.

Section

1 of the

Charter

does

not

mean that

the

Court

accepts

all

limits

on

rights.

The

legislature must articulate

its

desire

to

limit rights,

so

unelected

officials

such

as

police

officers,

for

example, cannot take

it

on

themselves

to

limit rights without statutory authorization.

The

requirement

that

the

legislature

make clear

statements

when

it

intends

to

limit rights

follows

common

law

traditions

and

enhances democracy.

It

requires candour and, ideally, legislative

and

public debate about

the

limits placed

on

rights.

In

addition, governments also must

justify

limi-

tations

on

rights

by

showing that they were aimed

at an

important

objec-

tive,

that

the

limitation advances that

objective,

that there were

not

other less drastic

but

reasonable alternatives

to

advance

the

objective,

and

that

the

overall benefit

of the

limitation

in

advancing

the

objective

outweighs

the

costs

of

infringing

the

right.

The

ability

of

governments

to

justify laws

that

violate rights

under

section

1 of the

Charter

promotes

a

dialogue between courts

and

legislatures, with

the

courts asking

why

rights need

to be

violated,

and the

legislature explaining why. Section

1,

not

section

33, is the

true engine

of

dialogue under

the

Charter.

Sunday

Shopping

Much

about

the

role

and

evolution

of

section

1 of the

Charter

can be

understood

by

recalling

a

time,

one

that seems increasing distant

and

quaint,

in

which there

was

controversy over whether people could shop

on

Sunday.

Today,

most

of us are

happy

to

find

any

time

in our

hectic

lives

to buy

groceries

and

other

necessities,

let

alone worry about

the

religious significance

of

Sunday

or

whether Sunday shopping will dis-

rupt

a

common rest

day to be

shared with

families

and

friends.

The

first

challenge

to

Sunday closing laws

was

brought

by a

Calgary

drug store,

Big M

Drug

Mart,

which

was

charged under

the

fed-

eral

Lord's

Day Act for

selling groceries

on

Sunday.

As its

name implied,