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Chief Justice Dickson said, at paras [65- 76],

[Entrenched rights and the section 1 guarantees]

‘The Crown submits that, even if [the Act] violates s. 11(d) of the Charter, it can still be upheld as a reasonable limit under s. 1, which… provides:

‘1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

The question whether the limit is “prescribed by law” is not contentious in the present case, since [the Act] is a duly-enacted legislative provision. It is, however, necessary to determine if the limit on Mr. O’s’ right, as guaranteed by s. 11(d) of the Charter, is “reasonable” and “demonstrably justified in a free and democratic society” for the purpose of s. 1 of the Charter, and thereby saved from inconsistency with the Constitution.

[Function and interpretation of section 1]

It is important to observe at the outset that s. 1 has two functions:

first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and

second, it states explicitly the exclusive justificatory criteria …against which limitations on those rights and freedoms must be measured.

Accordingly, any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms — rights and freedoms which are part of the supreme law of Canada…

A second contextual element of interpretation of s. 1 is provided by the words “free and democratic society”.

Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic.

The court must be guided by the values and principles essential to a free and democratic society, which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

The rights and freedoms guaranteed by the Charter are not, however, absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance. For this reason, s. 1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter.

These criteria impose a stringent standard of justification, especially when understood in terms of the two contextual considerations discussed above, namely, the violation of a constitutionally-guaranteed right or freedom and the fundamental principles of a free and democratic society.

[Burden of proof]

The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. It is clear from the text of s. 1 that limits on the rights and freedoms enumerated in the Charter are exceptions to their general guarantee.

The presumption is that the rights and freedoms are guaranteed unless the party invoking s. 1 can bring itself within the exceptional criteria which justify their being limited. This is further substantiated by the use of the word “demonstrably”, which clearly indicates that the onus of justification is on the party seeking to limit…

[Civil standard of proof]

The standard of proof under s. 1 is the civil standard, namely, proof by a preponderance of probability. The alternative criminal standard, proof beyond a reasonable doubt, would, in my view, be unduly onerous on the party seeking to limit. Concepts such as “reasonableness”, “justifiability” and “free and democratic society” are simply not amenable to such a standard.

[He then considers different degrees of probability]

…in every civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be satisfied, and that whether or not it will be so satisfied must depend on the totality of the circumstances on which its judgment is formed including the gravity of the consequences …

Having regard to the fact that s. 1 is being invoked for the purpose of justifying a violation of the constitutional rights and freedoms the Charter was designed to protect, a very high degree of probability will be, in the words of Denning L.J., “commensurate with the occasion”.

[The evidence needed]

Where evidence is required in order to prove the constituent elements of a s. 1 inquiry…, it should be

[a] cogent and persuasive and

[b] make clear to the court the consequences of imposing or not imposing the limit…

[c] (a) court will also need to know what alternative measures for implementing the objective were available to the legislators when they made their decisions.

I should add, however, that there may be cases where certain elements of the s. 1 analysis are obvious or self-evident.

[2 requirements for establishing reasonableness and a demonstrable justification]

To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied.

First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”: R. v. Big M Drug Mart Ltd., supra, at p. 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups.

[3 components of proportionality]

There are, in my view, three important components of a proportionality test.

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.

Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352.

Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective which has been identified as of “sufficient importance”.

[Enquiry into effects]

With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s. 1 is necessary. The inquiry into effects must, however, go further.

A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society.

Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.

Having outlined the general principles of a s. 1 inquiry, we must apply them…’

[Edited and formatted (including added square parentheses) for ease of reading.]

For a later summary of the Canadian law see R v Edwards Books & Art Ltd.

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