Section One of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter
that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an individual's Charter rights. This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as hate speech
(e.g. in R. v. Keegstra
) and obscenity
(e.g. in R. v. Butler
). It has also been used to protect from the unreasonable interference of government in the lives of people in a free and democratic society by defining these limits.
When the government has limited an individual's right, there is an onus upon the crown to show, on the balance of probabilities, firstly, that the limitation was prescribed by law namely, that the law is attuned to the values of accessibility and intelligibility; and secondly, that it is justified in a free and democratic society, which means that it must have a justifiable purpose and must be proportional.
Where 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 a 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.
[1986] 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 limit must be as small as possible. 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:
The means must be proportional
There must be minimal impairment of rights
There must be proportionality between the infringement and objective
The test is heavily founded in factual analysis so strict adherence is not always practiced. A degree of overlap is to be expected as there are some factors, such as vagueness, which are to be considered in multiple sections. If the legislation fails any of the above branches, it is unconstitutional. Otherwise the impugned law passes the Oakes test and remains valid.
Since Oakes, the test has been modified slightly.
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 and obscure. The Court ruled this was an insufficient objective, because it was more of an explanation than an objective.
, 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).
This step had been 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. 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," 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.)
(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:
The second half of the Supreme Court, however, continued to apply the Oakes test; the Oakes test is still used in section 15 cases.
(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.
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."
. 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 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. 10(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).
However, unlike the Canadian Charter, art. 18 of the European Convention limits all these specifically enumerated restrictions: The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed. Perhaps the Canadian Charters single overriding limitation upon all of the enumerated rights is much more general limitation than the specific limitations in the European Convention.
The Bill of Rights
entrenched in the Constitution of South Africa
in 1996 also contains a clause comparable to the Charters section 1 and the ECHR's articles 8 to 11. Section 36 requires that a "limitation is reasonable and justifiable in an open and democratic society," and that one should consider relevant factors such "the importance of the purpose of the limitation," "the relation between the limitation and its purpose," and "less restrictive means to achieve the purpose."
In Canada itself, the Oakes test has been comparable to the ways in which other rights have been limited. Section Thirty-five of the Constitution Act, 1982
, which affirms Aboriginal and treaty rights, is technically not part of the Charter and therefore is not subject to section 1. However, in R. v. Sparrow
the Court developed a test to limit section 35 that Hogg has compared to the section 1 Oakes test. After the Sparrow case, provincial legislation can only limit Aboriginal rights if it has given them appropriate priority. The Quebec Charter of Human Rights and Freedoms
contains a section that has also been compared to section 1. Namely, section 9.1 states that when one invokes rights, it should be in a manner with respecting "democratic values, public order and the general well-being of the citizens of Québec" and that law may limit rights. In Ford v. Quebec, it was found an analysis of limits under section 9.1 should be similar to that under section 1 of the Canadian Charter. In Syndicat Northcrest v. Amselem
, Justice Michel Bastarache
contrasted this with the main difference between the two sections. Namely, the section 9.1 statements about how one should use rights does not mention legislatures, and thus the Quebec Charter has relevance to private law
. In Dagenais v. Canadian Broadcasting Corp.
(1994), the Court also developed a test under the common law
modelled after the Oakes test to consider publication ban
s.
in 1967, Liberal
Attorney General Pierre Trudeau
appointed law professor Barry Strayer
to research enshrining rights into the Constitution. Canada already had a Canadian Bill of Rights
passed in 1960. This Bill of Rights did not have the force of the Charter and was criticised as being weak. The Bill of Rights is similar in content to the Charter however it does include a protection for property that is not in the Charter.
Strayer's report for the Trudeau government advocated a number of ideas which were later incorporated into the Charter, including allowing for limits on rights. Such limits are now included in the Charter's limitation and notwithstanding clauses. Trudeau had become prime minister in 1968 and his government implemented the Charter in 1982.
In the initial planning stages of the Charters 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 parliament
ary 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
. The provinces
, however, did not find it a sufficiently strong enough recourse and instead insisted on the inclusion of the notwithstanding clause
.
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."
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,
Bakan was supposedly influenced by US case law, which Morton and Knopff write should disappoint "Those who praise the section 1/Oakes Test as a distinctively Canadian approach to rights litigation." However, Morton and Knopff's source is "anonymous."
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an individual's Charter rights. This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as hate speech
Hate speech
Hate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
(e.g. in R. v. Keegstra
R. v. Keegstra
R. v. Keegstra, [1990] 3 S.C.R. 697 is a landmark freedom of expression decision of the Supreme Court of Canada where the Court upheld the Criminal Code of Canada provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression...
) and obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
(e.g. in R. v. Butler
R. v. Butler
R. v. Butler, [1992] 1 S.C.R. 452 is a leading Supreme Court of Canada decision on pornography and state censorship. In this case, the Court had to balance the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms with women's rights; the outcome has been...
). It has also been used to protect from the unreasonable interference of government in the lives of people in a free and democratic society by defining these limits.
When the government has limited an individual's right, there is an onus upon the crown to show, on the balance of probabilities, firstly, that the limitation was prescribed by law namely, that the law is attuned to the values of accessibility and intelligibility; and secondly, that it is justified in a free and democratic society, which means that it must have a justifiable purpose and must be proportional.
Text
Under the heading of "Guarantee of Rights and Freedoms", the section states: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 intelligible 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".Where 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 a 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.
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. OakesR. v. Oakes
R. v. Oakes [1986] 1 S.C.R. 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations clause of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be...
[1986] 1 S.C.R. 103 which was written by Chief Justice Dickson
Brian Dickson
Robert George Brian Dickson, , commonly known as Brian Dickson, was appointed Chief Justice of Canada on April 18, 1984. He retired on June 30, 1990 and died October 17, 1998.-Career:...
. 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.
R. v. Big M Drug Mart Ltd.
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, is a landmark decision by Supreme Court of Canada where the Court struck down the Lord's Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms...
(1985), Dickson asserted that limitations on rights must be motivated by an objective of sufficient importance. Moreover, the limit must be as small as possible. 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
- The means must be
The test is heavily founded in factual analysis so strict adherence is not always practiced. A degree of overlap is to be expected as there are some factors, such as vagueness, which are to be considered in multiple sections. If the legislation fails any of the above branches, it is unconstitutional. Otherwise the impugned law passes the Oakes test and remains valid.
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 discriminatoryDiscrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
or antagonistic to fundamental freedoms, or objectives inconsistent with the proper division of powers
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
. In Vriend v. Alberta
Vriend v. Alberta
Vriend v. Alberta [1998] 1 S.C.R. 493 is an important Supreme Court of Canada case that determined that a legislative omission can be the subject of a Charter violation...
(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
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
found an Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
law unconstitutional because it extended no protection to employees terminated due to sexual orientation
Sexual orientation
Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...
, contradicting section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
. The government had chosen not to protect people in this predicament because the predicament was considered rare and obscure. 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 HoggPeter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
, 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
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
(1988), in which Dickson was of the opinion that laws against abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
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
Fetus
A fetus is a developing mammal or other viviparous vertebrate after the embryonic stage and before birth.In humans, the fetal stage of prenatal development starts at the beginning of the 11th week in gestational age, which is the 9th week after fertilization.-Etymology and spelling variations:The...
and the pregnant woman
Woman
A woman , pl: women is a female human. The term woman is usually reserved for an adult, with the term girl being the usual term for a female child or adolescent...
'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 had been 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. 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," 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
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
laws requiring the exclusive use of French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
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
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
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 ColumbiaAndrews v. Law Society of British Columbia
Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 is the first Supreme Court of Canada case to deal with section 15 of the Canadian Charter of Rights and Freedoms...
(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
William McIntyre
William Rogers McIntyre, CC was a Canadian Puisne Justice of the Supreme Court of Canada.Born in Lachine, Quebec, the son of Charles Sidney McIntyre and Pauline May Sifton, he moved with his family to Moose Jaw, Saskatchewan when he was young. In 1939, he received a Bachelor of Arts degree from...
, 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.
The second half of the Supreme Court, however, continued to apply the Oakes test; the Oakes test is still used in section 15 cases.
R. v. Stone
In the case R. v. StoneR. v. Stone
R. v. Stone, [1999] 2 S.C.R. 290 is a leading Supreme Court of Canada decision on the use of the defence of automatism in a criminal trial.-Background:...
(1999), the issue of crime committed by a person suffering from automatism
Automatic behavior
Automatic behavior, from the Greek automatos or self-acting, is the spontaneous production of often purposeless verbal or motor behavior without conscious self-control or self-censorship...
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
Section Eleven of the Canadian Charter of Rights and Freedoms
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
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 12Section Twelve of the Canadian Charter of Rights and Freedoms
Section Twelve of the Canadian Charter of Rights and Freedoms, as part of the Charter and of the Constitution of Canada, is a legal rights section that protects an individual's freedom from cruel and unusual punishments in Canada. The section has generated some case law, including the essential...
of the Charter, which provides rights against cruel and unusual punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
. In R. v. Smith (1987)
R. v. Smith (1987)
R. v. Smith , [1987] 1 S.C.R. 1045 is a leading Supreme Court of Canada decision. The Court struck down a mandatory seven year sentence requirement for the importation of drugs as a violation of the right against cruel and unusual punishment contrary to section 12 of the Canadian Charter of Rights...
, 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
This general limitations clause definitely makes the Canadian Charter distinct from its United States counterpart, the Bill of RightsUnited States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. Regarding similarities with the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, there are various limitations in the European Convention that are similar to the limitations clause in the Charter. These limits include:
- limits on privacy rights as are accepted as in Canada (Article 8(2)
However, unlike the Canadian Charter, art. 18 of the European Convention limits all these specifically enumerated restrictions: The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed. Perhaps the Canadian Charters single overriding limitation upon all of the enumerated rights is much more general limitation than the specific limitations in the European Convention.
The Bill of Rights
Constitution of South Africa Chapter 2: Bill of Rights
Chapter Two of the Constitution of South Africa contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa...
entrenched in the Constitution of South Africa
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
in 1996 also contains a clause comparable to the Charters section 1 and the ECHR's articles 8 to 11. Section 36 requires that a "limitation is reasonable and justifiable in an open and democratic society," and that one should consider relevant factors such "the importance of the purpose of the limitation," "the relation between the limitation and its purpose," and "less restrictive means to achieve the purpose."
In Canada itself, the Oakes test has been comparable to the ways in which other rights have been limited. Section Thirty-five of the Constitution Act, 1982
Section Thirty-five of the Constitution Act, 1982
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
, which affirms Aboriginal and treaty rights, is technically not part of the Charter and therefore is not subject to section 1. However, in R. v. Sparrow
R. v. Sparrow
R. v. Sparrow, [1990] 1 S.C.R. 1075 was an important decision of the Supreme Court of Canada concerning the application of Aboriginal rights under section 35 of the Constitution Act, 1982...
the Court developed a test to limit section 35 that Hogg has compared to the section 1 Oakes test. After the Sparrow case, provincial legislation can only limit Aboriginal rights if it has given them appropriate priority. The Quebec Charter of Human Rights and Freedoms
Quebec Charter of Human Rights and Freedoms
The Charter of Human Rights and Freedoms is a statutory bill of rights and human rights code passed by the National Assembly of Quebec on June 27, 1975...
contains a section that has also been compared to section 1. Namely, section 9.1 states that when one invokes rights, it should be in a manner with respecting "democratic values, public order and the general well-being of the citizens of Québec" and that law may limit rights. In Ford v. Quebec, it was found an analysis of limits under section 9.1 should be similar to that under section 1 of the Canadian Charter. In Syndicat Northcrest v. Amselem
Syndicat Northcrest v. Amselem
Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551 was a decision of the Supreme Court of Canada that attempted to define freedom of religion under the Quebec Charter of Human Rights and Freedoms and section 2 of the Canadian Charter of Rights and Freedoms...
, Justice Michel Bastarache
Michel Bastarache
J. E. Michel Bastarache is a Canadian lawyer, businessman, and retired puisne justice on the Supreme Court of Canada....
contrasted this with the main difference between the two sections. Namely, the section 9.1 statements about how one should use rights does not mention legislatures, and thus the Quebec Charter has relevance to private law
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
. In Dagenais v. Canadian Broadcasting Corp.
Dagenais v. Canadian Broadcasting Corp.
Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835 is the leading Supreme Court of Canada decision on publication bans and their relation to the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms...
(1994), the Court also developed a test under the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
modelled after the Oakes test to consider publication ban
Publication ban
A publication ban is a court order which prohibits the public or media from disseminating certain details of an otherwise public judicial procedure. In Canada, publication bans are most commonly issued when the safety or reputation of a victim or witness may be hindered by having their identity...
s.
History
At around the time of the centennial of Canadian ConfederationCanadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
in 1967, Liberal
Liberal Party of Canada
The Liberal Party of Canada , colloquially known as the Grits, is the oldest federally registered party in Canada. In the conventional political spectrum, the party sits between the centre and the centre-left. Historically the Liberal Party has positioned itself to the left of the Conservative...
Attorney General Pierre Trudeau
Pierre Trudeau
Joseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...
appointed law professor Barry Strayer
Barry Strayer
Barry Lee Strayer, OC was a Justice on the Canadian Federal Court of Appeal and is currently a Deputy Judge on the Federal Court of Canada. He is known as one of the instrumental drafters of the Canadian Charter of Rights and Freedoms.In 1959, Strayer graduated from the faculty of law at the...
to research enshrining rights into the Constitution. Canada already had a Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
passed in 1960. This Bill of Rights did not have the force of the Charter and was criticised as being weak. The Bill of Rights is similar in content to the Charter however it does include a protection for property that is not in the Charter.
Strayer's report for the Trudeau government advocated a number of ideas which were later incorporated into the Charter, including allowing for limits on rights. Such limits are now included in the Charter's limitation and notwithstanding clauses. Trudeau had become prime minister in 1968 and his government implemented the Charter in 1982.
In the initial planning stages of the Charters 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 parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
ary 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
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
. The provinces
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
, however, did not find it a sufficiently strong enough recourse and instead insisted on the inclusion of the notwithstanding clause
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
.
Criticism
The Charter has been criticized for increasing judicial power, as the scope of judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
has been widened. Section 1 is part of the perceived problem. In their book The Charter Revolution & the Court Party, Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
politician Ted Morton
Ted Morton
Frederick Lee Morton , known commonly as Ted Morton, is a Canadian politician and Minister of Energy for the Province of Alberta. As a Member of the Legislative Assembly of Alberta he represents the constituency of Foothills-Rocky View as a Progressive Conservative...
and Professor Rainer Knopff
Rainer Knopff
Rainer Knopff is a writer, professor of political science at the University of Calgary, Canada, and member of a group known as the Calgary School. He especially well-known for his views about the influence of judicial decisions on Canadian public policy...
allege judges have a greater role and more choice in shaping policy, and quote former Chief Justice Antonio Lamer
Antonio Lamer
Joseph Antonio Charles Lamer, PC, CC, CD was a Canadian lawyer, jurist and Chief Justice of the Supreme Court of Canada.-Personal life:...
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."
At one point Morton and Knopff also criticize the growing power of Supreme Court clerks by alleging that Dickson's clerk Joel Bakan
Joel Bakan
Joel Conrad Bakan is a Canadian writer and Associate Professor at the University of British Columbia Faculty of Law.Born in Lansing, Michigan and raised for most of his childhood in East Lansing, Michigan where his parents, Paul and Rita Bakan, were both long-time professors in psychology at...
was the true author of the Oakes test. Morton and Knopff write,
Bakan was supposedly influenced by US case law, which Morton and Knopff write should disappoint "Those who praise the section 1/Oakes Test as a distinctively Canadian approach to rights litigation." However, Morton and Knopff's source is "anonymous."