The Supreme Court of Canada and Section One of the Charter

Abstract

The Supreme Court's early analysis of the opening section of the Charter seemed to come from nowhere. It stood in stark contrast to the interpretation suggested by commentators and adopted in decisions of the lower courts, in which limits on rights were the end product of a balancing of individual versus communal interests on a fulcrum of "reasonableness," often weighted by foreign example. Court watchers expressed perplexity, and even exasperation, at the Supreme Court's failure to follow along this well-worn path. Then, as the Court began to evolve its view of section 1, they criticized it for imposing too stringent or too unrealistic a standard. Despite the appearance of intense interest in this aspect of the Supreme Court's Charter jurisprudence, the judges' struggle to come to terms with section 1 justification has received little attention. That struggle, culminating in R. v. Oakes in February of 1986, is the subject of this paper.

My analysis of the Supreme Court's treatment of section 1 is divided into three parts. The initial discussion isolates the Court's view of the form that limits must take, namely, that limits must be "prescribed by law," so as to reveal the doctrine of separation of powers implied in these words. The focus in the second part of the paper is upon the substantive component of justification of limits on rights. The Court has relied upon a distinction between "denials" and "limits" to explain why it rejects certain considerations-deemed suitable to denial of rights in the legislative forum, either by override or constitutional amendment-as inappropriate to judicial justification of limits on rights. The judges then carried this distinction forward into their positive formulation of the values that inhere in section 1 justification with the effect that justification of limits on rights engages the very values inherent in the rights. The Charter's purpose-that Canadian society be free and democratic-is achieved by recognizing that the concept of a free and democratic society, is the genesis of the enumerated rights and freedoms as well as the standard against which limits of those rights and freedoms are justified. In the concluding portion of this paper I outline the vision of society underlying the Supreme Court's paradigm of rights protection and sketch how this approach has fared in more recent Supreme Court cases.