Limiting Rights to Protect Morality: Upholding Charter Values as a Pressing and Substantial Objective

Abstract

The Supreme Court of Canada has held that the enforcement of morality is a valid purpose of the criminal law and a pressing and substantial objective capable of justifying limits on Charter rights under the Oakes test. In this article, we argue that the Court’s jurisprudence establishes that it is permissible for the state to limit Charter rights to protect morality if doing so advances Charter values. We show that this approach is consistent with the need for the state to remain neutral between moral values, a fundamental tenet of liberalism, and we respond to other potential objections. We also apply our argument to various laws governing morality. We claim that laws that prohibit the commodification of the human body and preserve the value of human life have a pressing and substantial objective. Conversely, laws criminalizing consensual sexual practices that rely exclusively on majoritarian moral judgments do not.