Limitation of Charter Rights
Author | Robert J. Sharpe; Kent Roach |
Pages | 66-94 |
66
CHAPTER 4
LIMITATION OF
CHARTER
RIGHTS
A central task in the interpretation of any instrument guaranteeing
fundamental rights and freedoms is to reconcile the rights of the in-
dividual with the interests of the community at large. The effect of the
Charter is to shift an important share of responsibility for this task
from the elected representatives of the people to the judiciary. In light
of the Supreme Court’s generous definition of most enumerated rights
through the purposive method of interpretation described in Chapter 3,
it is not surprising to find that the Court places heavy reliance on the
second stage of Charter adjudication, defining the limitation of rights.
This is mandated by section 1, which provides that the rights and free-
doms guaranteed are “subject only to such rea sonable limits prescribed
by law as can be demonstrably justified in a free and democratic soci-
ety.” The Supreme Court has interpreted that provision as encompass-
ing both a formal and a substantive element — the formal element is
caught by the words “prescribed by law” and the substantive element
is contained in an examination of the state’s justification for limiting
the right and its chosen means for doing so. At the same time, the im-
position of definitional limits on some Charter rights — most notably,
sections 7, 8, and 12 of the Charter, suggests that it may be more dif-
ficult for the government to justify limit s on rights after laws have been
found to violate such rights. This is particularly the case if the Court
has determined that some substantive aspects of proportionality have
been violated in the course of findi ng a rights violation. In other words,
Limitat ion of Charter Rights67
the Court’s approach to section 1 will inevitably be influenced by how
narrowly or broadly the Court defines the underlying right.
A. LIMITS PRESCRIBED BY LAW
The first requirement for a justifiable limit is that it be, in the words
of section 1, “prescribed by law.” Initially, the courts refused to up-
hold laws that conferred an open-ended or vaguely defined discretion
to limit protected freedoms. Thus, for example, the courts str uck down
as too ill-defined a customs regulation that allowed officials to restrict
entry into Canada of materials that they considered to be “immoral.”1
Similarly, a provincial scheme conferring the power of censorship on a
film board without setting out the criteria by which such powers were
to be exercised was str uck down as a violation of freedom of expression
that was not prescribed by law.2
In the words of LeDain J, “the requirement that the limit be pre-
scribed by law is c hiefly concerned with the distinction between a lim it
imposed by law and one that is arbitrary.”3 In that case, a Charter vio-
lation could not be justified under section 1 because the legislation
authorizing the police to require a driver to provide a breath sample
did not clearly authorize a denial or limitation of the detainee’s right
to counsel. Following this approach, section 1 does not play a role in
many Charter challenges to the exercise of police powers, where the
police officer’s actions in limiting the Charter right are not specifically
authorized or prescribed by law. This was reaffirmed in Little Sisters,
where the Supreme Court stated: “Violative conduct by government of-
ficials that is not authorized by statute is not ‘prescribed by law’ and
cannot therefore be justified under section 1.” In such cases, courts
must “therefore proceed directly to the remedy phase of the analysis.”4
There are important justifications for a rigorous approach to the
“prescribed by law” requirement under section 1 of the Charter. Gov-
ernment actions that infringe Charter rights should be accompanied by
notice to citizens of the conduct that is permitted and prohibited so that
they can regulate their activities accordingly. Similarly, the law should
1 Luscher v Deput y Minister of National Revenue (Customs & E xcise), [1985] 1 FC
85, 17 DLR (4th) 503.
2 ReOntario Film & Video Appreci ation Society and Ontar io Board of Censors (198 4),
5 DLR (4th) 766 (Ont CA).
3 Rv Therens, [1985] 1 SCR 613, 18 DLR (4th) 655 at 680 [Therens].
4 Little Sisters Book and Art Emp orium v Canada (Minister of Justice), [2000] 2 SCR
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