Limitation of Charter Rights

AuthorRobert J. Sharpe; Kent Roach
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 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].

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