Justifying Infringements of Section 7

• Author: Hamish Stewart
• Profession: Faculty of Law, University of Toronto
• Pages: 287-306

287

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 pre-

scribed by law as can be demonstrably justif‌ied in a free and demo-

cratic societ y.1

The double character of section 1 has often been noted: it guarantees

Charter rights and it provides a criterion for limiting them.2

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

suggest that some violations of Charter rights could not be justif‌ied

because they went 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 adopted either of these approaches. The Court has never rejected

1 Canadia n Charter of Rights and Fre edoms, Part I of the Constitut ion Act, 1982,

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

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

3 See, for instance , R v Morgentaler, [1988] 1 SCR 30 at 183 [Morgentaler], Wi l-

son J; R v Sharpe, 1999 BCCA 416 at paras 93– 94 (BCCA), Southin JA, rev ’d

2001 SCC 2.

4 Grégoire Webber, « La dispos ition limitative de la Cha rte canadienne : une inv i-

tation à déf‌ini r les droits et libertés au x contours indéterminés » in L B Trem-

FUNDAMENTAL JUSTICE

288

a section 1 argument on the ground that the violation 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 justi f‌ication is in effect to redraw the

boundaries of a right, t he Court has consistent ly treated section 1 argu-

ments as justif‌ications for infringements of rights rather than as def-

initions of the boundaries of rights. Rather than drawing a linguistic

disti nction between justi f‌iable or def‌initional “li mits” and unjustif‌i able

“violations,” the Court has considered how the criteria for justif‌ication

under section 1 apply to each infringement of a Charter right. An egre-

gious 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 infr ingement, not because of its descr iption 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 effect on the objective that is not outweighed by

its deleterious effects on the right.10

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

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

velopments in detail; instead, I discuss each element of the Oakes test

blay & Grégoire Webber, eds, The Limitat ion of Charter Rights: Critical Essays on

R v Oakes (Montréa l: Thémis, 2009).

5 Oakes, above note 2.

6 Charter, above note 1, s 1; Alberta v Hutterian 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.