Justifiable Limitations on Rights

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General Principles

Section 1 of the Canadian Charter of Rights and Freedoms states:

Guarantee of Rights and Freedoms
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.


CCRF

This provision is also known as the "reasonable limits clause" or "limitations clause", as it legally allows the government to limit an individual's Charter rights.

Section 7 Violations

Overbroad and Grossly Disproportionate
Where legislation is found to be overbroad or grossly disproportionate it is generally not justifiable under s. 1 of the Charter.[1]

  1. R v Boutilier, 2016 BCCA 235 (CanLII) at para 84
    Canada (AG) v Bedford, 2013 SCC 72 (CanLII) at para 129
    Carter v Canada (AG), 2015 SCC 5 (CanLII) at para 95

Prescribed by Law

The limitations on rights must be "prescribed by law". This refers to the requirement that the limitation on rights be the result of some conduct of a government or its agents following some accessible and intelligible law.

A law will be invalid where it is 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".[1]

"Law" in this context refers to both the common law as well as statutory law.[2]

  1. Irwin Toy Ltd. v Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927
  2. R v Shupe, 1987 CanLII 3171 (AB QB) at para 19

Oakes Test

The test to determine if the purpose of the law is demonstrably justifiable in a free and democratic society is known as the "Oakes Test".[1]

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. A violation of a right can only be justified where the following elements are made out on a balance of probabilities:

  1. There must be a pressing and substantial objective
  2. The means must be proportional
    1. The means must be rationally connected to the objective
    2. There must be minimal impairment of rights
    3. There must be proportionality between the infringement and objective
  1. R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103

Pressing and Substantial Objective

Minimal Impairment

Rational Connection

Proportionality