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

Review of Constitutional Studies, vol. 26, no. 1 (2022)

30 Pages Posted: 16 Jun 2022

See all articles by Mark Friedman

Mark Friedman

York University - Osgoode Hall Law School

Anthony Sangiuliano

Sage School of Philosophy, Cornell University

Date Written: 2022

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.

Suggested Citation

Friedman, Mark and Sangiuliano, Anthony, Limiting Rights to Protect Morality: Upholding Charter Values as a Pressing and Substantial Objective (2022). Review of Constitutional Studies, vol. 26, no. 1 (2022), Available at SSRN: https://ssrn.com/abstract=4133941

Mark Friedman

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

Anthony Sangiuliano (Contact Author)

Sage School of Philosophy, Cornell University ( email )

Ithaca, NY
United States

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