Section One of the Canadian Charter of Rights and Freedoms

By Erin Jackson
University of Alberta L.L.B. Student

Introduction

Section 1 of the Charter reads as follows: “the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by laws as can be demonstrably justified in a free and democratic society” [1].

While this section guarantees certain rights, it is often better characterized as a tool to limit those rights, “in pursuit of other legislative objectives” [2]. Essentially, where there are competing interests in respect of Charter-protected rights, section 1 serves as a means of determining whether it is permissible to allow a right to be infringed in pursuit of other collective goals. Therefore, the rights protected under the Charter are not absolute.

The interpretation of section 1 has been influenced by international human rights documents including the European Convention on Human Rights and the International Covenant on Civil and Political Rights [3]. Interestingly, the American Bill of Rights contains no limiting clause. That does not mean, however, that American rights are absolute. It simply means that the courts have had to step in and place restraints on certain rights (e.g. free speech) to ensure such that rights remain functional in a collective sense [4].

There are two main components of a Section 1 analysis. The first is that all limits must be “prescribed by law” and the second is that the limits must be “reasonable and demonstrably justified in a free and democratic society” [5].

Prescribed by Law (First Stage)

In Sunday Times v. United Kingdom, the European Court of Human Rights held that “prescribed by law” has two elements. First, the law in question must be accessible and second, the law must precise enough for individuals to regulate their conduct accordingly [6]. Constitutional law scholar Peter Hogg notes that while the Supreme Court of Canada has not yet completed a full analysis of what “prescribed by law” entails, the relevant case law is consistent with the notions of accessibility and precision of the law, as set out in Sunday Times [7].

Absolute precision in the law is nearly impossible and so the courts have had to contend with the notion of vagueness. In Irwin Toy Ltd. v. Quebec (Attorney General), the Supreme Court found that the question to be asked was “whether the legislature has provided an intelligible standard according to which the judiciary must do its work…where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no ‘limit prescribed by law’” [8]. Ultimately, the legislation in question must be specific enough that the Courts can interpret it in a meaningful way, if the legislation is too vague, it will not pass the first stage of the test.

R. v. Nova Scotia Pharmaceutical Company also dealt with the issue of vagueness. At the Supreme Court of Canada, Justice Gonthier outlined factors to be considered in determining whether or not a law is too vague: (1) the need for flexibility and the interpretive role of the courts; (2) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate; and (3) the possibility that many varying judicial interpretations of a given decision may exist and perhaps coexist [9].

Once the first stage of the test is met, the second step involves ensuring that any limits that are placed on rights protected by the Charter are “reasonable and demonstrably justified in a free and democratic society” as set out by Justice Dickson in R. v. Oakes (the Oakes test).

Justification (Second Stage)

The leading case used in a section 1 analysis is R. v. Oakes. This Supreme Court case dealt with the reverse onus created under section 8 of the Narcotic Control Act. The Court found that the provision in question was a violation of section 11(d) of the Charter. However, given the importance of the presumption of innocence in Canadian law, the Court undertook a section 1 analysis, but did not find in favour of Oakes. In coming to this conclusion, a two-part test was created, known as the Oakes test.

The first part of the Oakes test ensures that the legislation addresses a pressing and substantial objective. That is, that if the legislation has the effect of limiting a Charter right the subject matter of the legislation must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’” [10]. Once it is proven that the objective is sufficiently important to limit a Charter right, the second part of the test is to ensure that there is a rational connection between the government’s objectives and the legislation. This means that the party relying on Section 1 must show that the means chosen are “reasonable and demonstrably justified” [11]. Proving that there is a rational connection involves using a three-element “proportionality test,” which is discussed in more detail below.

The Oakes test, and section 1 analysis generally, have been supplemented by the Courts since the case was first decided and section 1 analysis now generally includes four steps: (1) pressing and substantial objective, (2) rational connection, (3) least drastic means and (4) proportionality.

1. Pressing and Substantial Objective

Is the government’s objective in limiting the right a pressing and substantial objective according to the values of a free and democratic society?

In most Charter cases reaching the Supreme Court of Canada, the “sufficiently important objective” aspect of the test has been satisfied because, as Hogg notes, “it has been easy to persuade the Court that, when the Parliament or Legislature acts in derogation of individual rights, it is doing so to further values that are acceptable in a free and democratic society, to satisfy concerns that are pressing and substantial and to realize collective goals of fundamental importance” [12].

An exceptional case in which the Court did not find a pressing and substantial objective, was R. v. Big M Drug Mart. In this case the right to freedom of religion was challenged by the corporation via an objection to provisions of the Lords Day Act, which forced the business to observe Sunday as a day of rest. The Court found that the law’s purpose (to compel a religious practice by observing Sunday as the Sabbath) was not pressing and substantial because it contradicted the commitments made to protect the freedom of religion [13].

2. Rational Connection

Does the legislation’s limitation of a Charter right have a rational connection to Parliament’s objective?

The Oakes case itself failed to meet the “rational connection” aspect of the test. The issue at the Supreme Court of Canada was to challenge the validity of a provision of the Federal Narcotic Control Act, which provided that if an accused was in possession of an illegal drug they were then deemed to be automatically holding it for the purpose of trafficking. This provision shifted the onus onto the accused to then prove that they were not in fact in possession of the drug for the purpose of trafficking (reverse onus). In order to satisfy the rational connection part of the test, the Crown would have had to show that there was a “rational connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking” [14]; because it was not proven, the Section 1 analysis stopped.

As was said in Oakes, the rational connection aspect of the test ensures that the law in question is “carefully designed to achieve the objective in question,” and that it should not be “arbitrary, unfair, or based on irrational considerations” [15].

3. Least Drastic Means

Do the means to achieve the objective impair the right as little as possible?

Commonly, this stage of the test is referred to as the “minimal impairment” component. Hogg argues that this is a misleading name and instead refers to it as the least drastic means since the term minimal “carries the connotation of trivial or slight, and a justified limit on a Charter right might be quite a severe limit on a right.” He goes on to provide an example: “the law of defamation…is hardly a ‘minimal’ restraint on freedom of expression, affecting as it does all expression that is critical of others, but it has been held to the minimum impairment required to safeguard the value of personal reputation” [16].

While the first, second, and fourth stages of the Oakes test have not been as difficult to prove in most cases, the least drastic means aspect has proven to be a higher burden to meet and as Hogg notes, “the requirement of least drastic means has turned out to be the heart and soul of s. 1 justification” [17].

4. Proportionality

In determining whether there is a rational connection, a three-part proportionality test must be satisfied:

(1) the measures in question must be carefully designed to achieve the objective in question and they must not be unfair or biased;

(2) the measures should impair “as little as possible” the right in question; and

(3) there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which as been identified as of “sufficient importance” [18].

This fourth step (proportionality) is utilized in section 1 analyses, but Hogg notes that,

when the Court engages in s. 1 analysis, it always goes through the motion of this fourth step. So far as I can tell, however, this step has never had any influence on the outcome of any case. And I think that the reason for this is that it is redundant. It is really a restatement of the first step, the requirement that a limiting law pursue an objective that is sufficiently important to justify overriding a Charter right [19].

Other Section One Analyses

Although the Oakes test is the primary form of section 1 analysis, there have been others. For example, Andrews v. Law Society of British Columbia found that the Oakes test should not, and cannot, be the only section 1 test used for infringement of the Charter. Justice McIntyre (writing for half of the Court; while the other half of the Court continued to apply the Oakes test) found that the standard set out in Oakes was too high a threshold to meet for section 15 equality rights, given the complexity of the issue the government must distinguish between many groups in society to create “sound social and economic legislation” [20]. Therefore, Justice McIntyre set out a two-part test used in Andrews with respect to section 15 equality rights:

(1) the government action must have been made out to achieve a “desirable social objective”; and

(2) the equality right infringed in the process of pursuing that objective must be examined, by evaluating its “importance” to those whose rights were limited; this evaluation is then balanced against a judgment as to whether the limits achieve the objective [21].

Another example of an alternative section 1 analysis is R. v. Stone, a case which dealt with the criminal defence of automatism. The majority of the Court held that since automatism could be “easily feigned,” the burden of proof must rest with the defence (reverse onus situation). Although it was found that the reverse onus would limit Section 11 legal rights, the majority found that it could be upheld under Section 1 because the criminal law presumes willing actions [22]. The dissent noted that this approach deviated from the standard Oakes analysis.

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (CanLII).
[2] Peter Hogg, Constitutional Law of Canada, 2006 Student Edition. (Scarborough, Ontario: Thomson Canada Limited) at 828.
[3] Ibid. at 826.
[4] Ibid. at 827.
[5] R. v. Oakes, [1986] 1 S.C.R. 103 at para. 11 [Oakes] (CanLII).
[6] The Sunday Times v United Kingdom (Series A No 30), European Court of Human Rights (1979-80) 2 EHRR 245, 26 APRIL 1979.
[7] Hogg, supra note 1 at 837.
[8] Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at 59.
[9] R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at 5.
[10] Oakes, supra note 5 at para. 69.
[11] Ibid. at para. 70.
[12] Hogg, supra note 2 at 847.
[13] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at para. 136 (CanLII).
[14] Oakes, supra note 5 at para. 78.
[15] Ibid. at para. 70.
[16] Hogg, supra note 2 at 860.
[17] Ibid.
[18] Oakes, supra note 5 at para. 70.
[19] Hogg, supra note 1 at 867.
[20] Andrews v. Law Society of British Columbia, [1989], 1 S.C.R. 143 at 4 (CanLII).
[21] Ibid.
[22] R. v. Stone, [1999] 2 S.C.R. 290 at para. 171 (CanLII).

Cases
Andrews v. Law Society of British Columbia, [1989], 1 S.C.R. 143 (CanLII).
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R 927 (CanLII).
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (CanLII).
R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 (CanLII).
R. v. Oakes, [1986] 1 S.C.R. 103 (CanLII).
R. v. Stone, [1999] 2 S.C.R. 290 (CanLII).