Justifying Infringements of Section 7

• Author: Hamish Stewart
• Pages: 349-370

349

CHA PTER 6

JUSTIFYING

INFRINGEMENTS

OFSECTION 7

A. INTRODUCTION

Section 1 of the Canadian Charter of Rights and Freedoms read s as follows:

The Canadian Charter of Rights and Freedom s guarantees t he rights

and freedoms set out in it subject only to suc h reasonable limit s

prescribed b y law as can be demonstr ably justif‌ied in a free and

democratic s ociety.1

Section 1 has a dual cha racter: it guarantees Charter rights and it pro-

vides a criterion for limiting them.2

Section 1 refers to “limits” on Charter rights. This language might

suggest that some violations of Char ter rights cannot be justif‌ied

because they go beyond merely “limiting” a given right to denying it

alt oget her. 3 Or it might suggest that section 1 helps to def‌ine rights by

specifying their “limits.”4 But the Supreme Court of Canada has not

1 Canadian Char ter of Rights and Freedoms, Part I of the Constitution Act, 1982,

being Schedule B to t he Canada Act 1982 (UK), 1982, c 11, s 1 [Charter].

2 R v Oakes, [1986] 1 SCR 103 at 135 [Oakes].

3 See, for insta nce, R v Morgentaler, [1988] 1 SCR 30 at 183 [Morgentaler], Wilson J;

R v Sharpe, 1999 BCCA 416 at paras 93– 94 (BCCA), Southin JA, rev’d 2001 SCC 2.

4 Grégoire Webber, “La disposition limit ative de la Charte cana dienne: une invi-

tation à déf‌ini r les droits et libertés aux c ontours indéterminés” in LB Trembl ay

& Grégoire Webber, eds, The Limitation of Charter Rights: Crit ical Essays on R v

Oakes (Montréal: Thémis, 2009).

FUNDAMENTAL JUSTICE350

adopted either of these approaches. The Court has never rejected a sec-

tion 1 argument on the ground that the v iolation of the right in question

was so severe that it did not count as a limit. A nd, although the effect of

a successful section 1 justi f‌ication is in effect to redraw the boundaries

of a right, the Court has consistently treated section 1 arguments as

justif‌ications for infr ingements of rights rather than as def‌in itions of the

boundaries of right s. Rather than draw ing a distinction between justi-

f‌iable or def‌initional “limits” and unjustif‌i able “violations,” the Court

has considered how the criter ia for justif‌ication under section 1 apply

to each infringement of a Charter right. An egregious in fringement of

a Charter right is and should be very diff‌icult to justify under section 1,

but that is because of the way t he criteria for justif‌ication apply to the

infringement, not because of it s description as an “inf ringement” rather

than as a “limit” or “boundary.”

B. THE TEST FOR JUSTIFICATION UNDER

SECT ION 1

The test for whether a legal limit on a Charter right is “re asonable” and

“demonstrably justif‌ied in a free and democratic society” is laid out in

several steps by the well-known Oakes te st.5 The limit on a right must:

• be “prescribed by law”;6

• have an objective relating to “concerns which are pressing and sub-

stantial in a free and democratic society”;7 and

• meet a three-part test for proportionality requiring that the li mit

»“be rationally connected to the objective”;8

»impair the right as l ittle as reasonably possible;9 and

»have a salutary ef fect on the objective that is not outweighed by its

deleterious e ffects on the r ight.10

Every element of this test ha s been considerably elaborated in the cases

following Oakes. In this chapter, I make no attempt to trace these develop-

ments in detail; inste ad, I discuss each element of the Oakes test with

reference to a number of efforts to justify a limit on the section 7 right.

5 Oakes, above note 2.

6 Charter, above note 1, s 1; Alberta v Hutte rian Brethren of Wilson Colony, 2009

SCC 37 at paras 39– 40 [Hutterian B rethren].

7 Oakes, above note 2 at 138–39.

8 Ibid at 139.

9 Ibid.

10 Ibid at 139– 40.