Justifying Infringements of Section 7

• Author: Hamish Stewart
• Pages: 349-370

349

CHAPTER 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 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.1

Section 1 has a dual character: 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 Charter rights cannot be justif‌ied

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

altogether.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. And, although the effect of

a successful section 1 justif‌ication 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 rights. Rather than drawing a distinction between justi-

f‌iable or def‌initional “limits” and unjustif‌iable “violations,” the Court

has considered how the criteria for justif‌ication under section 1 apply

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

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

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

infringement, not because of its description as an “infringement” rather

than as a “limit” or “boundary.”

B. THE TEST FOR JUSTIFICATION UNDER

SECTION 1

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

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

several steps by the well-known Oakes test.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 limit

»“be rationally connected to the objective”;8

»impair the right as little as reasonably possible;9 and

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

deleterious effects on the r ight.10

Every element of this test has been considerably elaborated in the cases

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

ments in detail; instead, 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.

10Ibid at 139– 40.