Section One of the Canadian Charter of Rights and Freedoms
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Under the heading of "Guarantee of Rights and Freedoms", the section states:
- 1. 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.
Prescribed by law
The inquiry into whether the limitation was "prescribed by law" concerns the situation where the limitation was the result of some conduct of a government or its agents and whether the conduct was authorized by accessible and intelligable law. The Court articulated when the authorization would fail for being too vague as "where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances".Irwin Toy v. QuebecWhere there is no lawful basis for the conduct the limitation will certainly fail. In Little Sisters Book and Art Emporium v. Canada, the Supreme Court found that the conduct of the border official in singling out homosexual from heterosexual reading materials was not authorized by any law. Likewise, police conduct that was not exercised under lawful authority will fail at this stage.See, for example, R. v. Therens, R. v. Hebert, and R. v. Broyles
Oakes test
The primary test to determine if the purpose is demonstrably justifiable in a free and democratic society is known as the Oakes test, which takes its name from the essential case R. v. Oakes 1 S.C.R. 103 which was written by Chief Justice Dickson. The test is applied once the claimant has proven that one of the provisions of the Charter has been violated. The onus is on the Crown to pass the Oakes test.In R. v. Big M Drug Mart Ltd. (1985), Dickson asserted that limitations on rights must be motivated by an objective of sufficient importance. Moreover, the right must be limited to the smallest possible extent. In Oakes (1986), Dickson elaborated on the standard when one David Oakes was accused of selling narcotics. Dickson for a unanimous Court found that David Oakes' rights had been violated because he had been presumed guilty. This violation was not justified under the second step of the two step process:
- There must be a pressing and substantial objective
- The means must be proportional
- # The means must be rationally connected to the objective
- # There must be minimal impairment of rights
- # There must be proportionality between the infringement and objective
Since Oakes, the test has been modified slightly.
Pressing and substantial objective
This step asks whether the Government’s objective in limiting the Charter protected right is a pressing and substantial objective according to the values of a free and democratic society. In practice, judges have recognized many objectives as sufficient, with the exception, since Big M, of objectives which are in and of themselves discriminatory or antagonistic to fundamental freedoms, or objectives inconsistent with the proper division of powers. In Vriend v. Alberta (1998), it was found that a government action may also be invalidated at this stage if there is no objective at all, but rather just an excuse. Specifically, the Supreme Court found an Alberta law unconstitutional because it extended no protection to employees terminated due to sexual orientation, contradicting section 15. The government had chosen not to protect people in this predicament because the predicament was considered rare. The Court ruled this was an insufficient objective, because it was more of an explanation than an objective.Rational Connection
This step asks whether the legislation’s limitation of the Charter right have a rational connection to Parliament’s objective. The means used must be carefully designed to achieve the objective. They must not be arbitrary, unfair or based on irrational considerations. Professor Peter Hogg, who used to argue the rational connection test was redundant, continues to argue the criterion is of little use. An example of the rational connection test being failed can be found in R. v. Morgentaler (1988), in which Dickson was of the opinion that laws against abortion should be struck down partly because of a breach of health rights under section 7 and an irrational connection between the objective (protecting the fetus and the pregnant woman's health), and the process by which therapeutic abortions were granted. This process was considered unfair to pregnant women requiring therapeutic abortions, because committees meant to approve abortions were not formed or took too long. (The law afterwards failed the other two proportionality criteria as well).Minimal Impairment
Does the legislative means to achieve the objective impair the Charter protected right in question as minimally as possible? Are there alternative modes of furthering Parliament’s objective that infringe the right to a lesser extent? The legislation cannot be overbroad or unduly vague.This step is considered the most important of the steps and is the test that is failed the most. Typically, outright bans will be difficult to prove as minimally impairing. see for example RJR - MacDonald v. Canada (1994) and Ramsden v. Peterborough (1993) However, the means does not necessarily have to be the absolute least intrustive; this is indeed one of the steps of the test that has been modified. In Oakes, the step was phrased to require the limit as being "as little as possible." In R. v. Edwards Books and Art (1986), this was changed to "as little as is reasonably possible,"R. v. Edwards Books and Art (1986) thus allowing for more realistic expectations for governments.
The inquiry focuses on balance of alternatives. In Ford v. Quebec (1988), it was found that Quebec laws requiring the exclusive use of French on signs limited free speech. While the law had a sufficient objective of protecting the French language, it was nevertheless unconstitutional because the legislature could have accepted a more benign alternative such as signs including smaller English words in addition to larger French words. (The Court decided in Ford that the same test would apply to article 9.1 of the Quebec Charter. Thus it is the reason why Quebec Charter jurisprudence can be of interest under section 1 of the Canadian Charter.)
Proportionality
This step asks whether the objective is proportional to the effect of the law. Are the measures that are responsible for limiting the Charter right proportional to the objective? Does the benefit to be derived from the legislation outweigh the seriousness of the infringement? The legislation may not produce effects of such severity so as to make the impairment unjustifiable. Professor Hogg has argued that merely satisfying the first three criteria of the Oakes test probably amounts to automatic satisfaction of the fourth criterion.Other section 1 analyses
While the Oakes test has been the primary form of section 1 analysis used by Supreme Court justices, it has not been the only one.McIntyre's section 1 test in Andrews
In the early section 15 case Andrews v. Law Society of British Columbia (1989), half of the Court declared that the Oakes test should not and cannot be the section 1 test used for all sections of the Charter. For Justice William McIntyre, the Oakes test was too high a standard for equality rights, which was a complex issue since governments must distinguish between many groups in society, to create "sound social and economic legislation." He thus drew up the following two-step test:
- 1. The government action must have been made to achieve a "desirable social objective."
- 2. The equality right infringed in the process of pursuing that objective is examined, with its "importance" to those whose rights were limited evaluated; this evaluation is then balanced against a judgment as to whether the limit achieves the objective.
R. v. Stone
In the case R. v. Stone (1999), the issue of crime committed by a person suffering from automatism was considered. The majority ruled that since automatism could be "easily feigned," the burden of proof must rest with the defense; while this would be a limit on section 11 rights, the majority found section 1 would uphold this because criminal law presumes willing actions. As the dissent noted, this use of section 1 did not reflect the standard Oakes test.Section 12
It has been questioned whether the Oakes test, or any section 1 test at all, could ever be applied to section 12 of the Charter, which provides rights against cruel and unusual punishment. In R. v. Smith (1987), some Supreme Court justices felt section 1 could not apply, although the majority employed section 1. Hogg believes section 1 can never apply; he has said section 12 "may be an absolute right. Perhaps it is the only one."Comparison with other human rights instruments
Regarding similarities with the European Convention on Human Rights, there are various limitations in the European Convention that are similar to the limitations clause in the Charter. These limits include:
- limits on public trial rights that have also been recognized by the Canadian courts (art. 6(1) ECHR);
- limits on privacy rights as are accepted as in Canada (Article 8(2) ECHR: except such as is in accordance with the law and is necessary in a democratic society);
- limits on freedom of thought and religion similar to Canadian limitations (art. 9(2) ECHR: subject only to such limitations as are prescribed by law and are necessary in a democratic society);
- limits on freedom of expression are accepted as in Canada (art. 9(2) ECHR: subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society);
- limits on freedom of peaceable assembly and free association are accepted in Canada as well (art. 11(2) ECHR: No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society).
The entrenched in the Constitution of South Africa in 1996 also contains a clause comparable to the Charter's section 1 and the ECHR's articles 8 to 11.Brice Dickson, "Human Rights in the 21st Century," Amnesty International Lecture, Queen's University, Belfast, 11 November 1999. Section 36 reads,
- 36. (1)The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including
- :(a) the nature of the right;
- :(b) the importance of the purpose of the limitation;
- :(c) the nature and extent of the limitation;
- :(d) the relation between the limitation and its purpose; and
- :(e) less restrictive means to achieve the purpose.
- {2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
History
In the initial planning stages of the Charter's development this section was intended to be the counter-balance to the court's ability to strike-out law with the Charter. An early version of the section guaranteed rights "subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government." This wording sparked debate over what government actions could be "generally accepted," with civil libertarians arguing that the clause would render Charter rights impotent. They even referred to it as a "Mack Truck" to imply that it would run over significant rights. In response, the wording was changed to the current version, to focus less on the importance of parliamentary government and more on justifiability of limits in free societies; the latter logic was more in line with rights developments around the world after World War II.Weinrib, Lorraine Eisenstat. "Trudeau and the Canadian Charter of Rights and Freedoms: A Question of Constitutional Maturation." In Trudeau's Shadow: The Life and Legacy of Pierre Elliott Trudeau. Edited by Andrew Cohen and JL Granatstein. Vintage Canada, 1998, pages 269-272.. The provinces, however, did not find it a sufficiently strong enough recourse and instead insisted on the inclusion of the notwithstanding clause.Criticism
The Charter has been criticized for increasing judicial power, as the scope of judicial review has been widened. Section 1 is part of the perceived problem. In their book The Charter Revolution & the Court Party, Alberta politician Ted Morton and Professor Rainer Knopff allege judges have a greater role and more choice in shaping policy, and quote former Chief Justice Antonio Lamer as stating that a Charter case, "especially when one has to look at Section 1... is asking us to make essentially what used to be a political call."Morton, F.L. and Rainer Knopff. The Charter Revolution & the Court Party. Toronto: Broadview Press, 2000, page 52.At one point Morton and Knopff also criticize the growing power of Supreme Court clerks by alleging that Dickson's clerk Joel Bakan was the true author of the Oakes test. Morton and Knopff write,
- Dickson, it is said, was dissatisfied with the section 1 portion of a draft judgment. He gave the draft to Bakan and asked him to rework the reasonable limitations section. Sensing a long night, Bakan armed himself with a bottle of sherry and set about constructing the now famous three prong balancing test.
Notes
References
- Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003.
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