Limitation of Charter Rights

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 65-90

65

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 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 t hat the Court places heavy reliance on the

second stage of Charter adjudication, def‌ining t he limitation of rights.

This is mandated by sect ion 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 exam ination of the state’s justif‌ication for limiting the

right and its chosen mean s for doing so.

A. LIMITS PRESCR IBED BY LAW

The f‌irst requirement for a justif‌iable limit is th at 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

THE

CHARTER OF R IGHTS AND FR EEDOMS

66

to limit protected freedoms. Thus, for example, the courts str uck down

as too ill-def‌ined a customs reg ulation that allowed off‌icials to re strict

entry into Canad a of materials that t hey 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 that the limit be pre-

scribed by law is ch ief‌ly 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 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 authori zed by statute is not ‘prescribed by l aw’ 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. Govern-

ment actions that infr inge Charter rights should be accompanied by no-

tice 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 off‌icials who exercise 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.

Despite these concerns, t he courts have more often tended to apply

a relatively relaxed standard under the “prescribed by law” require-

ment. A common law rule or a regulation, in addition to legi slation, can

constitute a limit “prescr ibed by law.”5 As an example, a public transit

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.

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].

5 Irwin Toy Ltd v Quebec, [1989] 1 SCR 927 (regulation); R v Swain, [1991] 1 SCR 933

(common law rule). At the same time, ad ministrative gui delines cannot constit ute