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 uphold laws that conferred an open-ended or vaguely defined discretion
to limit protected freedoms. Thus, for example, the courts struck down as too ill-defined a customs regulation that allowed officials to restrict entry into Canada of materials that they considered to be "immoral."1
Similarly, a provincial scheme conferring the power of censorship on a film board without 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 prescribed by law.2In the words of LEDAIN J, "the requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary."3In that case, a Charter violation could not be justified under section 1 because the 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, 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 prescribed by law. This was reaffirmed in Little Sisters, where the Supreme Court stated: "Violative conduct by government officials 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 the remedy phase of the analysis."4There are important justifications for a rigorous approach to the "prescribed by law" requirement under section 1 of the Charter. Government 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 officials who exercise discretion in applying and enforcing the law, and limits on Charter rights should be clearly stated to encourage democratic debate and accountability about such limitations.
Despite these concerns, the courts have more often tended to apply a relatively relaxed standard under the "prescribed by law" requirement. A common law rule or a regulation, in addition to legislation, can constitute a limit "prescribed by law."5As an example, a public transit
authority’s policy, adopted pursuant to a statutory power, on what advertising it would accept for display on the sides of...