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Concept
Section 1 of the Canadian Charter of Rights and Freedoms
Summary
Section 1 of the Canadian Charter of Rights and Freedoms is the section that confirms that the rights listed in the Charter 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 child pornography (e.g., in R v Sharpe), hate speech (e.g., in R v Keegstra), and obscenity (e.g., in R v Butler).
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.
Under the heading of "Guarantee of Rights and Freedoms", the section states:
- The Canadian Charter of Rights and Freedoms 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. 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.
Official source
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