Charter section 1: a balancing act for the court.

• Author: McKay-Panos, Linda
• Position: Human Rights Law - Law overview - Case overview

Whenever a government action or legislation is challenged in court as violating the Canadian Charter of Rights and Freedoms (Charter), an established process is followed. First, the claimant must show that his or her Charter rights have been violated. At this stage, the court looks at the purpose and effect of the law in question. Next, the court determines the meaning or content of the right or freedom being infringed. By analyzing both the law and the right or freedom in this manner, the court is able to determine if the impugned law has infringed a Charter right or freedom. If the court finds that the claimant's Charter right is violated, then the government has the opportunity to demonstrate that the offending action or law should be saved because the law or action is reasonable and justifiable in a free and democratic society in accordance with Charter s. 1. Finally, if the offending law or action is not saved by section 1, the court then provides a remedy.

Section 1 of the Charter provides: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In determining whether a Charter violation is saved by Charter s. 1, the court is placed in a position that often requires it to reconcile the rights of the individual with the interests of society. The 1986 Supreme Court of Canada case R. v. Oakes provides the court with guidance on how to make this determination. Nevertheless, it is a challenging process which may be illustrated by the recent Alberta Court of Appeal decision Hutterian Brethren of Wilson Colony v. Alberta (May, 2007).

In 2003, the Alberta government amended a regulation thereby eliminating the ability of the Registrar to issue drivers' licences without photos. Thus, every person who sought to obtain or renew a driver's licence must have his or her photo taken. The Hutterian Brethren of Wilson Colony believe it is a sin to have their photograph willingly taken. They argued that the regulation violated their right to freedom of religion under Charter s. 2(a) and their right to equality under Charter s. 15(1). It was generally acknowledged that the claimant's Charter rights were violated; the issue was whether the regulation could be saved by Charter s. 1.

The basic framework provided for determining whether a law may be saved under Charters. 1 is found in the R. v...