Judicial Acceptance of Limits on Rights

AuthorKent Roach
Pages175-196
175
chapter nine
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 unduly 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 con-
cern 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 overr ide competing rights and interests. And there are
examples of cases in which the Supreme Court has appeared to be ob-
livious to competing 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 inter-
ests. 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 diff‌ic ult, if not impossible, to ac-
cept the compromises that are often necessary in a functioning and
civil democracy. Progressive critics worry that judges will impose a
liberal and individualistic view of rights t hat conceives of the state as
the enemy, a view that leaves little room for the promotion of a sense
part two: the extent of judicial activism
176
of social responsibility and duty. Much of the anxiety about judicially
enforced rights comes from the common opinion that rights are ab-
solute “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 abridging freedom of speech.
As I suggest throughout this book, however, the Canadian Ch arter
of Rights and Freedoms is fundamentally different from the American
Bill of Rights. Instead of the First Amendment, we have a more mod-
est section 1, which provides that the Chart er “guarantees the rights
and freedoms set out in it,” but subject “to such reasonable limits pre-
scribed by law as can be demonstrably justif‌ied in a free and democratic
society.” This approach draws on the modern experience of allowing
necessary 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 jus-
tifying li mitations on Aboriginal and treaty rights even t hough section
1 does not apply to those rights. Critics of judicial activism in Canada
must come to grips with the brooding omnipresence that the limita-
tion 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 cour ts. In court, judges will ask
whether the government had a good reason for violating rights.
Section 1 of the Chart er does not mean that the Court accepts all
limits on rights. The legislature must art iculate 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 lim-
itations on rights by showing that they were aimed at an important ob-
jective, 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 C harter promotes

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