Justifiable Limitations on Rights: Difference between revisions
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'''Overbroad and Grossly Disproportionate'''<br> | '''Overbroad and Grossly Disproportionate'''<br> | ||
Where legislation is found to be overbroad or grossly disproportionate it is generally not justifiable under s. 1 of the Charter.<ref> | Where legislation is found to be overbroad or grossly disproportionate it is generally not justifiable under s. 1 of the Charter.<ref> | ||
R v Boutilier, [http://canlii.ca/t/grx23 2016 BCCA 235] (CanLII) at para 84<Br> | R v Boutilier, [http://canlii.ca/t/grx23 2016 BCCA 235] (CanLII){{perBCCA|D Smith J}} at para 84<Br> | ||
Canada (AG) v Bedford, [http://canlii.ca/t/g2f56 2013 SCC 72] (CanLII) at para 129<br> | Canada (AG) v Bedford, [http://canlii.ca/t/g2f56 2013 SCC 72] (CanLII){{perSCC|McLachlin CJ}} at para 129<br> | ||
Carter v Canada (AG), [http://canlii.ca/t/gg5z4 2015 SCC 5] (CanLII) at para 95<Br> | Carter v Canada (AG), [http://canlii.ca/t/gg5z4 2015 SCC 5] (CanLII){{TheCourt}} at para 95<Br> | ||
</ref> | </ref> | ||
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==Prescribed by Law== | ==Prescribed by Law== | ||
The limitations on rights must be "prescribed by law". This refers to the requirement that the limitation on rights | The limitations on rights must be "prescribed by law". This refers to the requirement that the limitation on rights is 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".<ref>Irwin Toy Ltd | 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".<ref>Irwin Toy Ltd v Quebec (Attorney General), [http://canlii.ca/t/1ft6g 1989 CanLII 87] (SCC), [1989] 1 SCR 927{{perSCC| Dickson C.J. and Lamer and Wilson JJ}}</ref> | ||
"Law" in this context refers to both the common law as well as statutory law.<ref> | "Law" in this context refers to both the common law as well as statutory law.<ref> | ||
R v Shupe, [http://canlii.ca/t/27w0j 1987 CanLII 3171] (AB QB) at para 19 | R v Shupe, [http://canlii.ca/t/27w0j 1987 CanLII 3171] (AB QB){{perABQB|Cooke J}} at para 19 | ||
</ref> | </ref> | ||
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==Oakes Test== | ==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".<ref>R v Oakes, [http://canlii.ca/t/1ftv6 1986 CanLII 46] (SCC), [1986] 1 SCR 103</ref> | 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".<ref>R v Oakes, [http://canlii.ca/t/1ftv6 1986 CanLII 46] (SCC), [1986] 1 SCR 103{{perSCC|Dickson CJ}}</ref> | ||
The test is applied once the claimant has proven that one of the provisions of the Charter has been violated. | The test is applied once the claimant has proven that one of the provisions of the Charter has been violated. | ||
Revision as of 20:22, 22 November 2018
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]
- ↑
R v Boutilier, 2016 BCCA 235 (CanLII), per D Smith J at para 84
Canada (AG) v Bedford, 2013 SCC 72 (CanLII), per McLachlin CJ at para 129
Carter v Canada (AG), 2015 SCC 5 (CanLII), per curiam 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 is 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]
- ↑ Irwin Toy Ltd v Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927, per Dickson C.J. and Lamer and Wilson JJ
- ↑ R v Shupe, 1987 CanLII 3171 (AB QB), per Cooke J 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:
- 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
- ↑ R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, per Dickson CJ