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

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