Limitations to the
Charter
Sections 1 and 33
LIMITATIONS OF THE CHARTER
Section 1 and the Oakes Test
• Section 1 Charter ~ rights are NOT absolute. It legally allows the
government to limit an individual’s Charter rights. (Government cannot
limit without justification)
• Oakes Test’ ~ whether the infringement is a “reasonable limit prescribed
by law” that is “demonstrably justified in a free and democratic society”.
• If the infringement is a reasonable limit, the legislation or conduct is
“saved” under s. 1.
• If not, courts will either strike down, read in, or read down the statute or
law so that it complies with the Charter.
The Oakes Test
In the R. v. Oakes case David Oakes was found possessing narcotics,
and automatically accused of having the intention to traffic narcotics.
It was found that David Oakes' rights had been violated because he
had been presumed guilty of trafficking without evidence.
R. v. Oakes provided the Court with the opportunity to interpret the
wording of section 1 of the Charter and to explain how section 1
would apply to a case.
The result was the Oakes Test – a test that is used every time a
Charter violation is found.
The Oakes Test
Section 1 requires the government to show that the law in question is a
reasonable limit on Charter rights, which can be demonstrably justified in a free
and democratic society.
1. Prescribed by Law
The limitation of any Charter right must be prescribed by law. This
protects against arbitrary actions by government.
 There was a limit put on David Oakes’s rights (he was presumed
guilty of trafficking). There was a law that said that if you were
found with narcotics then you were automatically seen as having
the intent to traffic. The court found that the law did not put a
reasonable limit on the Charter right.
2. Pressing and Substantial
The government must prove that the objective of
the law is pressing and substantial. In other words,
the purpose of the law must be important to society.
In the case R. v. Big M Drug Store, The Court found
that the purpose of the Lord’s Day law was to force
people to observe a Sunday Sabbath, a law that was
not of significant importance, or pressing and
substantial enough, to justify the infringement of
section 2.
R. v. Big M Drug Mart
The drug store was charged with unlawfully selling goods on Sunday,
which went against the Lord’s Day Act.
It was found that the Lord’s Day Act violated section 2 of the Charter,
which states that citizens have the right to freedom of conscience
and religion.
The Lord’s Day Act was struck down.
Despite the decision of R. v. Big Drug Mart, the government does not
often have difficulty showing the pressing and substantial nature of a
law.
3. Proportionality:
This step in the Oakes Test contains three sub-steps:
i. Rational Connection
The limitation of the right must be rationally connected to the objective
of the law in question. Any limitation to a Charter right cannot be
arbitrary, or unconnected to the purpose of the law.
For example, in R. v. Oakes, the Supreme Court of Canada found that
there was no rational connection between the requirement that an
accused disprove intent to traffic with the purpose of the law, to prevent
drug trafficking.
iii. Proportionate Effect
This part of the Oakes Test is concerned with the overall benefits
and effects of the law in question.
It asks if the limit on the right is proportional to the importance of
that law’s purpose.
Example: While it may be arguable that to prevent people from
publishing whatever they want infringes freedom of expression
under s. 2, it is reasonable to conclude that without s. 300 of the
Criminal Code, any newspaper could knowingly publish false
information about a person without facing any consequences. In
this example, the central question of proportionality is whether
society benefits more from having s. 300 of the Code in place than
it loses by having s. 2 limited in this way.
Clip: http://www.youtube.com/watch?v=wqlsTNBtqEM
R. v. Keegstra
Eg., Hate Speech
James Keegstra, a public school teacher in
Alberta was charged for promoting hatred against
a group and communicating anti-Semitic statements
to his students.
He said the charge was a violation
of his rights.
The Supreme court of Canada using section 1, limited his rights. The
majority of Justices looked at hate speech as not being a victimless
crime, but instead having the potential for psychological harm,
degradation, humiliation, and a risk of violence.
ii. Minimal Impairment
In order for a government action that infringes Charter rights to be
justifiable, the Charter right must be impaired as little as possible.
Courts may also take a deferential (respectful) approach toward a
law when the law in question infringes a right or freedom in order
to support another right or freedom.
For example, a law prohibiting hate speech, which infringes on
freedom of expression under section 2 (b), may have as its purpose
to promote equality rights under section 15.
Section 1 also arises in cases where a Charter infringement is being
argued.
• Often a party is arguing that some action by the government –
either a specific provision of a law, a law in its entirety, or a
direct action by a government agent – has infringed that
person’s Charter rights.
Eg., Prostitution Laws
 It was argued that the provisions of the law was infringing on
the prostitutes’ rights.
LIMITATIONS CON’T (S.33)
Notwithstanding Clause
• Section 33 allows Parliament or provincial legislatures to override some
Charter-protected rights.
• Can only be used to override rights in s. 2 (fundamental freedoms), and ss.
7-15 (legal rights and equality rights). (NO other sections)
 provides a limited ability to pass laws that conflict with
Charter- protected rights and freedoms.
• must be renewed at least once every five years to remain in force.
• Outside of Quebec, the clause has only been relied upon on FOUR
occasions since the Charter was enacted in 1982.
 (Yukon, Saskatchewan, Alberta –twice )
Examples…
1. Quebec, 1988: The Liberal government invoked it to protect
Bill 178, its French-language sign legislation.
2. Saskatchewan 1984: The Tory government invoked it while
legislating provincial employees back to work
3. Alberta, 1998: The Alberta government invoked it to restrict
compensation it must pay to hundreds of victims of enforced
sterilization between 1928 and 1972.
4. Alberta, 2000: The Alberta government in an attempt to
amend that province’s Marriage Act to limit the definition of
marriage to opposite-sex couples. (attempt FAILED when SCC
ruled that the def’n of marriage is federal jurisdiction.
NOTE: If Section 33 is to
be invoked it must be
stated within the
legislation. This gives
opportunity for the
opposition to raise
concerns.
Key Points….
• Declaration under
Section 33 expires (is of no
force) after five years. It
must then be re-declared.
• S. 33 carries a heavy
political price (in terms of
public opinion) when
invoked.
CRITICISMS
1. transfers ultimate legal authority from the elected legislature to the
judiciary
2. rights are now static (beyond the realm of legislative reform)
3. inspires more (sometimes frivolous) litigation
4. inspires a focus on individual rights as opposed to collective rights
Read about section 33 of the Charter.
1. What is the purpose of the notwithstanding clause?
2. What does the government have to do in order to use
section 33?
3. The reasonable limits clause and notwithstanding clause
are examples of how the Charter can be challenged and
worked around. Is it reasonable to say then that one political
purpose of the Canadian Charter is to “guarantee” our rights
and freedoms if these exceptions exist? Explain.
ENFORCING THE CHARTER
S.24
•
Gives people the power to apply to courts whenever they
feel their rights are being infringed and ask for a remedy.
•
Section 24(1) allows courts to grant any remedy the judge
considers “appropriate and just” in the circumstances .
•
Section 24(2) specifies when trial judges can or should
exclude evidence that was obtained (normally by the police)
in violation of an individual’s Charter rights.
 Ex., if the police violate an accused person’s rights to be
free from unreasonable search and seizure, the accused
can ask a judge to exclude any evidence found during the
search.
Enforcing the charter Con’t…
S. 52
•
Second remedial section - states “The Constitution of
Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect.”
•
Courts can:
•
‘read down’ the infringing statute
•
‘read in’ words to the legislation to make it consistent
with the Charter
•
 ‘strike down’ legislation has no force or effect
USEFUL SITES
• Canadian Charter of Rights and Freedoms:
• http://laws-lois.justice.gc.ca/eng/Const/page-15.html
•
•
•
•
•
Charter Rights Fact Sheets:
http://yourlegalrights.on.ca/human-rights/charter-rights
http://www.pch.gc.ca/pgm/pdp-hrp/canada/frdm-eng.cfm
http://www.csc-scc.gc.ca/text/pblct/rht-drt/12-eng.shtml
http://ojen.ca/sites/ojen.ca/files/resources/Charter%20Overv
iew_Eng_Final.pdf