Limitation of Charter Rights

• Author: Robert J. Sharpe; Kent Roach
• Pages: 66-94

66

CHA PTER 4

LIMITATION OF

CHARTER

R IGHTS

A central task in t he interpretation of any instrument guaranteeing

fundamental rights and freedoms is to reconcile the right s of the in-

dividual with t he 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 judici ary. In light

of the Supreme Court’s generous def‌inition of most enumerated rights

through the purposive method of inter pretation described in Chapter 3,

it is not surprising to f‌ind that the Court places heavy reliance on the

second stage of Charter adjudication, def‌ining t he 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 demonstr ably 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 l aw” and the substantive element

is contained in an ex amination of the state’s justif‌ication for limiting

the right and its chosen means for doing so. At the same time, the im-

position of def‌inition al limit s on some Charte r 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 par ticularly the case i f the Court

has determined t hat some substantive aspects of proportionality have

been violated in the course of f‌indi ng a rights violation. In other words,

Limitat ion of Charter Rights 67

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 t hat 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 d iscretion

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 Canad a of materials that they considered to be “immoral.”1

Similarly, a provincial scheme conferri ng 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 prescr ibed by law.2

In the words of LeDain J, “the requirement th at 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 a rbitrary.”3 In that case, a Charter vio-

lation could not be justif‌ied under section 1 because t he 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, sect ion 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 Ch arter 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 authori zed by statute is not ‘prescribed by law’ and

cannot therefore be justif‌ied under sect ion 1.” In such cases, courts

must “therefore proceed directly to the remedy phase of the analysis.”4

There are important justif‌icat ions for a rigorous approach to the

“prescribed by law” requirement under section 1 of the Charter. Gov-

ernment actions that in fringe Charter rights should be accompanied by

notice to citizens of the conduct that is permitted and prohibited so that

they can regulate t heir 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 Re Ontario Film & Video Appreci ation Society and Ontar io Board of Censors (198 4),

5 DLR (4th) 766 (Ont CA).

3 R v 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

1120, 193 DLR (4th) 193 at para 141 [Little Sisters].