Limitation of Charter Rights

• Author: Robert J. Sharpe, Kent Roach
• Pages: 65-89

65

CHA PTER 4

LIMITATION OF

CHA RTER

R IGHTS

A central t ask in t he interpretation of any inst rument guaranteeing

fundamental rights and freedoms is to reconcile the rights of the in-

dividual with the interests of t he community at large. The effect of the

Charter is to shift an i mportant share of responsibility for th is task

from the elected representatives of the people to the judici ary. In light

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

through the purposive method of interpretation described in chapter 3,

it is not sur prising to f‌ind that the Court places heav y reliance on the

second stage of Ch arter adjudication, def‌ining t he limitation of rights.

This is mandated by section 1, which provides that the r ights and free-

doms guaranteed are “subject only to such reasonable limits prescribed

by law a s 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 examinat ion 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 that it be, in the words

of section 1, “prescribed by law.” Initially, the courts refused to up-

hold laws t hat conferred an open-ended or vaguely def‌ined discretion

THE CHARTER OF R IGHTS AND FR EEDOMS66

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

as too ill-def‌ined a customs regulation that al lowed off‌icials to re strict

entry into Canada of materi als th at they con sidered to be “immoral.”1

Similarly, a provincial scheme conferri ng the power of censorship on a

f‌ilm board w ithout setting out the criteria by which such powers were

to be exercised was struck down as a violation of freedom of expression

that was not prescribe d by law.2

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

scribed by law is chief‌ly concerned with the distinction between a limit

imposed by law and one that is arbitrar y.”3 In that case, a Charter v io-

lation could not be justi f‌ied under section 1 because the legislation

authorizing the police to require a driver to provide a breath sample

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

to counsel. Following t his approach, section 1 does not play a role in

many Charter challenges to the exercise of police powers, where t he

police off‌icer’s actions in li miting 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 t he remedy phase of t he analysis.”4

On the other hand, the Supreme Court held that a public transit author-

ity’s policy, adopted pursuant to a statutory power, on what advertising

it would accept for display on the sides of buses, is a form of “law” that

satisf‌ies the “prescribed by law” requirement.5

There are important justif‌ications for a rigorous approach to the

“prescribed by law” requirement under section 1 of t he Charte r. Gov-

ernment actions that infringe Charter r ights should be accompanied

by notice to citizen s of t he conduct that is permitted and prohibited

so that they ca n regulate their activities accordingly. Similarly, the law

should set adequate limits on off‌icials who exercise discretion in ap-

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

clearly stated to encourage democratic debate and accountability about

such limitations.

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

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

2 Re Ontario Film & Vide o Appreciation Society and Ont ario Board of Censors

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

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

4 Little Sisters Book and Art Em porium v. Canada (Minister of Justice), [2000] 2

S.C.R. 1120, 193 D.L.R. (4th) 193 at para. 141 [Little Sisters].

5 Greater Vancouver Transportation Auth ority v. Canadian Federation of Stude nts —

British Columbia Compo nent, 2009 SCC 31.