Justifying Infringements of Section 7

AuthorHamish Stewart
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).
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.
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.

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