Limitation of Charter Rights

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 62-85

CHAP TER 4

LIMITATION OF

CHARTER

R IGHT S

A central task in the interpretation of any instrument guaranteeing

fundamental right s 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 t ask

from the elect ed representatives of t he people to t he judiciar y. In light

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

through the purpos ive method of interpret ation described in chapter 3,

it is not surprising to fi nd that the Court places he avy 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 reasonable limits prescribed

by law as can be demon strably justified i n a free and democratic soc i-

ety.” The Supreme Court has interpreted t hat provision as encompass-

ing both a formal and a substant ive 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 t he

right and its chosen means for doing so.

A. LIMITS PRESCRIBED BY LAW

The first requirement for a justifiable limit i s 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 vag uely defined discretion

62

Limitation of Charter Rights 63

to limit protected freedoms. Thus, for example, the court s struck down

as too ill-defined a customs regulation that allowed officials to restr ict

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

Similarly, a provincial scheme conferring t he power of censorship on a

film board without setting out the criteria by which such powers were

to be exercised was st ruck down as a violation of freedom of express ion

that was not prescr ibed by law.2

In the words of LeDain J., “the requirement that the limit be pre-

scribed by law i s chiefly concerned with the distinction bet ween a limit

imposed by law and one that i s arbitrary.”3 In that case, a Charter vio-

lation could not be justified under sect ion 1 because the legisl ation

authorizing the police to require a driver to provide a breat h sample

did not clearly authorize a denial or limitation of the detainee’s right

to counsel. Following thi s 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 prescr ibed by law. This was reaffirmed in Little Sisters,

where the Supreme Court stated: “Violative conduct by government of-

ficials that i s not authorized by statute is not ‘pre scribed by law’ and

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

must “therefore proceed directly to the remedy pha se 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 set adequate limits on official s who exercise discretion in ap-

plying and enforcing the law, and limits on Charter rights should be

clearly stated to encourage democratic debate and accountabi lity about

such lim itations.

Despite these concerns about vagueness, courts have tended to ap -

ply a relatively relaxed stand ard under the “prescribed by law” require-

ment. A common law rule or a regulation, in addition to legislation,

1Luscher v. Deputy Ministe r of National Revenue (Customs & Ex cise), [1985] 1 F.C.

85, 17 D.L.R. (4th) 503.

2Re Ontario Film & Video Ap preciation Society and Ontar io Board of Censors

(1984), 5 D.L.R. (4th) 766 (Ont. C.A.).

3R. v. Therens, [1985] 1 S.C.R. 613, 18 D.L.R. (4th) 655 at 680.

4Little Sisters Book and Art Emp orium v. Canada, [2000] 2 S.C.R. 1120, 193 D.L.R.

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