Justifications for Limiting Constitutionally Guaranteed Rights and Freedoms: Some Remarks About the Proper Role of Section One of the Canadian Charter
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Manitoba Law Journal, Vol. 13, p. 669, 1983
Section 1 of the Canadian Charter of Rights and Freedoms provides that the rights and freedoms described in subsequent Charter sections are “guaranteed.” For the first time in Canadian history, those rights and freedoms have become constitutionalized. However, section 1 also provides that such rights and freedoms are also qualified; they are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” What is the nature of the qualification that applies to "guaranteed" Charter rights? How can one tell whether a proferred justification is, in fact, constitutionally adequate? What legal test(s) are to be applied in making such determinations?
This paper, based on an address at the 1983 Annual Conference of the Canadian Institute for the Administration of Justice, focuses on the "section 1" approach to questions of justification under the Charter. Pursuant to this approach, all issues about the applicable constitutional standard of justification for limiting Charter rights are apparently sought to be addressed through reference to the text of section 1. The central legal questions in every Charter case would be whether the challenged restriction on protected rights is a "limit", whether, if so, that limit is "prescribed by law", whether it is "reasonable", and whether it can be "demonstrably justified in a free and democratic society". This paper argues that this "section 1" approach to all Charter issues is incorrect both as a matter of proper technical analysis of the language and structure of the Charter and also as a matter of good human rights policy.
Number of Pages in PDF File: 13
Keywords: constitutional law, Canadian law, Charter of Rights and FreedomsAccepted Paper Series
Date posted: June 18, 2009
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