LIMITS AND CHANGE OVER TIME:
s.1. The CCRF 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.
• Text indicates Charter rights are NOT absolute; gov’t can limit them
Two main structural components of s.1:
1. Requirement that all limits on rights be “Prescribed by Law”
2. Requirement that all limits on rights be “Reasonable” as well as “Demonstrably justified in a free and democratic society”
“Prescribed by Law”:
• Narrows the chance to argue for justification of an infringement of a guaranteed right or freedom; must be prescribed by the law
• Serves as a “gatekeeper function”, restricting the instances a court can justify a Charter infringement
• Related to “vagueness”: a law that has been found to infringe Charter rights will not satisfy the principles of fundamental justice if it is too vague
• Protect rights by requiring that any limitations on rights have been carefully considered and authorized by the legislature
“Justification”:
• Legal academics though SCC’s approach to s.1 justification wd be to balance rights claims a/g communal interests based on a reasonableness
• SCC began to set down relatively narrow view of the values that wd justify limitation of rts under s.1
• Pre-Oakes, rts were the norm, limits were the exception; limits were subject to stringent justification
R v. Oakes [1986]
Facts: Oakes challenged the “reverse onus” re: possession/trafficking in the NCA, arguing it violated s.11(d) of CCRF
Held: • section of the NCA did violate s.11(d) of Charter
• Court established “The Oakes Test” re: when the infringement could be upheld under s.1
• Objective of protecting society from ills associated w/ drug trafficking was of sufficient importance to warrant overriding C’lly protected R&F
• However, failed RC step (means chosen to implement the objective was not rationally connected to objective) since no rational connection b/w possession of small amt of narcotics and intent to traffic
• Appeal dismissed
Reasoning: Dickson: Two functions of s.1:
1. Guarrantees the rights & freedoms set in the Charter
2. Sets out the criteria against which limitations on those R&F must be measured
• Crt is guided by values and principles “essential to a free and democratic society” (i.e. human dignity, social justice, equlity, variety of beliefs, participatory social/political institutions)
• Crt will limit if these values are being furthered
• R&F are NOT absolute; may need to limit them for collective goals of fundamental importance
• Dual function of s.1 as both guarantee and justificatory basis for limitations on R&F
Two contextual considerations:
1. Violation of C’lly guaranteed R&F
2. Fundamental principles of a free and democratic society
stringent standard of justification
OAKES
TEST: When is a limit reasonable and demonstrably justified in a free and democratic society?
• ONUS of proving a limit is justified rests on party invoking s.1 and seeking to uphold limitation (gov’t)
• Standard of Proof is b.o.p. (civil standard)
• If gov’t fails any of these → NOT a reasonable limit.
I. Pressing & Substantial Objective (P&SO)
• Objective must be of sufficient importance to warrant overriding C’ly protected R&F
• Standard must be high so that trivial matters do not gain s.1 protection
II. Proportionality
• Crt needs to balance the interests of society with those of individuals and groups
• Means proportional to the ends
1. Rational Connection (RC)
• Measures must not be arbitrary, unfair or based on irrational consideration;
• Means must be rationally connected to the objective
2. Minimal Impairment (MI)
• Means (even if rationally connected to obj) should impair “as little as possible” the RorF in question
3. Balancing of Seriousness of the Effects a/g the Importance of Objectives
• Must be proportionality b/w effects of the measures responsible for limiting the R&F and objective identified as of “sufficient importance”
• Possibility that deleterious effects of measure on individuals/groups will not be justified by the purposes it is intended to serve
• The more severe the deleterious effects of a measure, the more imp the obj must be if the measure is to be reasonably and demonstrably justified in free and democratic society
• See Dagenais for this part of test
Approach to s.1 Post-Oakes
o Trend towards more deferential, flexible, reasonable-based approach (Edwards, Irwin)
o More deference to gov’t means more rights violations are justified
APPLICATION OF THE CHARTER:
s. 32: Application of the Charter
• “Government of Canada”: refers to the executive government (party in power, PM’s office)
• “Parliament”: all parties in government (everybody)
• applies to the legislative, executive, and administrative branches of government
The Debate About Application to Private Action
Dolphin Delivery Ltd. [1986] SCC
Facts:
• Union wanted to “secondary-picket” DD, an ally of their employer, Purolator
• Under the Labour Code of BC, secondary picketing was lawful
• Purolator was an interprovincial courier and employment fell under federal jurisdiction (Canada Labour Code) which was silent on secondary picketing
• Determination ∴ fell under CmL which finds secondary picketing to be unlawful interference w/ k’ual relations
• Dolphin applied for injunction based on CmL to restrain the threatened picketing
Issue 1: Does the Charter apply to the Common Law?
Holding: YES; BUT only in so far as the Common Law is the basis for some government action which is alleged to infringe the Charter
Reasoning: Language of s.52(1) is broad enough to illustrate that the Charter DOES apply to Common Law
Issue 2: Does the Charter apply to private litigation divorced completely from any connection with govt?
Holding: NO (Hogg)
• Charter regulates government vs. private persons, not private vs. private
• “the rights guaranteed by the Charter take effect only as restrictions on the power of gov’t over the persons entitled to rights.
• i.e, actions such as er restricting ee’s freedom of speech, parent restricting mobility of child, landlord discriminating on basis of race cannot be breaches of Charter b/c no action by gov’t or leg. (must resort to branches of private law: tort, contract, human rights code, labour law, etc.)
Reasoning: • S.32 specifies who Charter applies to (legislative, executive, administrative branches of gov’t)
• Need action by one of these actors, otherwise wd be immeasurable increase in scope of Charter
• Don’t want Charter invading area of private litigation
o McIntyre rejects Hogg’s position that a court order is governmental action, and that therefore, the Charter will apply to that private arrangement
o This would widen the scope of the Charter application to virtually ALL private litigation
Issue 3: What element of government intervention makes the Charter applicable in an otherwise private action?
Holding: RULE: “Where one private party invokes or relies upon government action to produce an infringement of the Charter rights of another, the Charter will be applicable”
• Difficult to define
• For Charter to apply, need direct and precisely defined connection b/w the element of gov’t action and the claim advanced (ie: Blaney [private vs. private], girl wants to play hockey; Charter was applied b/c one of the parties acted on the authority of a statutory provision which infringed the Charter rights of another)
Case at Hand: • No offending statutory provision specifically outlawing secondary picketing
• No exercise of or reliance upon governmental action which would invoke the Charter
• Appeal fails
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