Limitations of Fundamental Freedoms and Rights
• Irony of guaranteeing rights and freedoms is
that we sometimes have to restrict these same
rights and freedoms
Section 1 – Reasonable Limits Clause
• Let’s take a look…
Any Charter case:
1.Individual must establish that a Charter right or
freedom has been violated.
ex. Wearing a seatbelt violates section 7
2. Government must show that the limit is
justified.
HOW???
2 Part Test: (aka Oakes Test)
Part 1
Can the limit on the rights and freedoms be
justified?
o Is it pressing and substantial?
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Part 2 – Proportionality Test
1.
2.
3.
Is the objective rational? (Does it make
sense?)
Does the limitation impair rights or freedoms
as little as possible?
Are the effects of the limitation proportional
to the objective?
Importance of
Government Objective
Effects of Limiting
Rights and Freedoms
SOCIAL INTERESTS
INDIVIDUAL INTERESTS
Government objectives that have “passed” the
test:
• Mandatory seatbelt laws
• Child pornography limitations
• D.N.A. collection
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Section 33 – Notwithstanding Clause
• Enables governments to limit the use of the
Charter – aka veto a decision
• Applies to most important parts…Section 2
(fundamental freedoms) and Sections 7-15
(legal and equality rights)
• Arguably the most important section of the
Charter
• Two significant limitations to the Charter =
Section 1 and Section 33
• Therefore, although we have rights and
freedoms, powerful forces can limit them
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