Fundamental Freedoms - The Charter of Rights and Freedoms
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Guarantee of Rights and Freedoms, section 1.
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Case Law


What is a justifiable limit?

Regina v. Oakes, [1986] 1 S.C.R. 950 (Supreme Court of Canada)

This case explains how Courts apply section 1 of the Charter. It explains how to decide whether a law that limits a Charter right is justifiable in a free and democratic society (known as the "Oakes test" or the "section 1 test").


To uphold a law that limits a Charter right:

  1. The purpose (or objective) of the limiting law must be important enough to override a Charter right. (It must address a "pressing and substantial" concern.)
  2. The law must limit the Charter right in a way appropriate ( or "proportional") to the purpose of the law:
    • a) The parts of the law that limit the Charter right must logically relate (be "rationally connected") to the purpose of the law.
    • b) The Charter right must be limited as little as possible ("minimal impairment").
    • c) The purpose of the limiting law must not be outweighed by the limit on the Charter right.

In the Oakes case, a drug trafficking law was being challenged. A person could be convicted of trafficking if they possessed even a small quantity of a drug. The Court decided that the law was not rationally connected to the purpose of convicting drug traffickers. It was not reasonable to presume that a person with a small quantity of drugs was trafficking.

Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R.835 (Supreme Court of Canada)
A Court must look at the good and bad effects of a law when deciding if the law overrides a Charter right in a way that is appropriate (or proportional) to its purpose.

Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (Supreme Court of Canada)
If the only purpose of a limit on a Charter right is cost-cutting, the limiting law is not likely to be justifiable under section 1.

Newfoundland Treasury Board v. Newfoundland Association of Public Employees, [2004] 3 S.C.R. 381 (Supreme Court of Canada)
A provincial government violated equality rights under section 15 of the Charter by postponing a pay equity agreement. The Court decided that the need to respond to an extraordinary financial crisis was a "pressing and substantial" purpose under section 1 of the Charter. The government's violation of section 15 could be justified under section 1 of the Charter.

Regina v. Butler, [1992] 1 S.C.R. 452 (Supreme Court of Canada)
A law dealing with pornography limited the right to freedom of expression. The Court decided that the limit was justifiable under section 1 of the Charter. The purpose of the law was to avoid harm to society and this was important enough to justify the limit on the Charter right.

Peterborough (City) v. Ramsden, [1993] 2 S.C.R. 1084 (Supreme Court of Canada)
A law that did not allow posters on city property limited the right to freedom of expression. The Court decided that this limit to freedom of expression was not justifiable under section 1 of the Charter. The limit was not appropriate to the purpose of the law. A total ban on posters limited freedom of expression more than necessary to achieve the purpose of the particular law (preventing littering, preventing harm to workers).

See also:

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (Supreme Court of Canada) McKinney v. University of Guelph, [1990] 3 S.C.R. 229 (Supreme Court of Canada)


Limit Must be Prescribed by Law

Regina v. Orbanski; Regina v. Elias, 2005 SCC 37 (Supreme Court of Canada)
A limit can be "prescribed by law" where it necessarily flows from the requirements of the law.

Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69 (Supreme Court of Canada)
An action by a government official that limits a Charter right but is not authorized by a law, cannot be justified under section 1. In such cases, the violation of a Charter right is absolute.

Regina v. Swain, [1991] 1 S.C.R. 933 (Supreme Court of Canada)
A common law rule (i.e. a rule made by the courts rather than the government) can be a limit "prescribed by law."

This is general information only. To find out what the Court said in a case, refer to specific judgments. Links to Supreme Court of Canada judgments can be found in the Resources section of this Web site (see top and bottom menus).

John Diefenbaker, 1960. I am a Canadian, a free Canadian, free to speak without fear, free to worship God in my own way, free to stand for what I think right, free to oppose what I believe woring, free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and for all mankind.
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