Limitation of Charter Rights

• Author: Robert J. Sharpe; Kent Roach
• Pages: 71-100

71

CHA PTER 4

LIMITATION OF

CHARTER

R IGHTS

A central task in the interpretation of any instrument guaranteeing

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

vidual with the interests of the community at large. The eect 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 of Canada’s generous def‌inition of most enumer-

ated rights through the pur posive method of interpretation described

in Chapter 3, it is not surprising to f‌i nd that the Court places heavy

reliance on the second stage of Charter adjudicat ion, def‌ining the limit-

ation of rights. This is mand ated by section 1, which provides that the

rights and freedoms guaranteed are “subject only to such reasonable

limits prescr ibed by law as can be demonstrably justif‌ied in a free and

democratic society.” The Supreme Court has interpreted th at provision

as encompassing both a formal and a substantive element; the formal

element is caught by the words “prescribed b y law,” and the substantive

element is contained in an exa mination of the state’s justif‌ication for

limiting the r ight and its chosen means for doing so. At the same time,

the impo sition of def‌in itional limits on some Charter rights — most

notably, sections 7, 8, and 12 of the Charter — suggests that it may be

more dicult for the government to justify lim its on rights after laws

have been found to violate such rights. This i s particularly the case if t he

Court has determined that some substantive aspects of proportionality

have been violated in the course of f‌ind ing a rights violation. In other

words, the Court’s approach to section 1 will inevit ably be inf‌luenced by

how narrowly or broadly the Court def‌ines t he underlying right.

THE CHARTER OF R IGHTS AND FR EEDOMS72

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 uphold

laws that conferred an open- ended or vaguely def‌ined discretion to limit

protected freedoms. Thus, for example, the courts struck dow n as too

ill- def‌ined a customs regulation that allowed ocials to restrict entry

into Canada of materi als that they considered to be “i mmoral.”1 Simi-

larly, a provincial scheme conferring the power of censorship on a f‌ilm

board without setting out the criter ia by which such powers were to be

exercised was str uck down as a violation of freedom of expre ssion 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 li mit

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

ocer’s actions in limiting the Charter right are not specif‌ical ly author-

ized or prescribed by law. This was rearmed in Little Sisters Book and

Art Emporium v Canada (Minister of Justice), where the Supreme Court

stated: “Violative conduct by government ocials that is not authori zed

by statute is not ‘prescribed by law’ and cannot therefore be justi f‌ied

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 in fringe Charter r ights should be accompanied by

notice to citizens of the conduct that is pe rmitted and prohibited so that

they can regulate t heir activities accordingly. Similarly, the law should

set adequate limits on ocials who exerci se discretion in applying and

enforcing the law, and limits on Charter r ights should be clearly stated to

encourage democratic debate and accountability about such limitations.

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 Apprec iation 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 SCC 69,

[2000] 2 SCR 1120, 193 DLR (4th) 193 at para 141 [Little Sisters].