The Charter of Rights and Freedoms is the one of the most recognizable parts of Canada’s constitutional democracy. Signed in 1982 under the Trudeau administration (and following extensive negotiations), the Charter of Rights and Freedoms provides legal protection for citizens’ rights to free speech, religion, and freedom from discrimination by limiting government power. And although people living in Canada are largely able to enjoy the rights and freedoms guaranteed by the Charter, there are clauses that also allow some of those rights and freedoms to be violated in certain circumstances . In particular, there are two sections of the Charter–section 1 (the reasonable limits clause) and section 33 (the notwithstanding clause) that create space for governments to violate some of the terms of the Charter–violations which are then validated (or not) by the courts.  Section 1: The Reasonable Limits Clause
When a government in Canada makes a law that violates the terms of the Charter, a court might say that doing so is legitimate, so long as the violation occurs in ways that are a “reasonable limit” that can be “demonstrably justified in a free and democratic society,” or in other words, saved under s.1. The Supreme Court of Canada developed a test in the landmark case of R. v. Oakes to assess what constitutes a reasonable limit, that involves a two-part to determine whether legislation violating the Charter can be justified under s.1. In R. v. Oakes, the Supreme Court developed a two-part formula (the with three justificatory criteria to weigh the balance of power between the law in question and individuals’ freedom and rights. The first part of the test asks two foundational questions to establish the connection of the case to the use of the Charter effectively determining whether the limit on freedom is reasonable: 1) Is the legislative goal pressing and substantial and; 2) is there proportionality between the objective and the means used to achieve it? After the first part of the test is established, the Court must engage in the second part of the Oakes test, that is, identifying whether that reasonable limit can be demonstrably justified in three ways. First, the aim of the law or policy under scrutiny must be rationally connected to the limit on the Charter right. Second, the limitation must restrict the Charter right as little as possible (i.e., minimal impairment). Third, there should be an overall balance or proportionality between the benefits of the limit and potential harmful effects. One early and important application of the reasonable limits clause occurred in the case of R.v Keegstra. In this case, a teacher had handed out anti-Semitic posters at an Alberta high school, and was arrested and charged for with promoting hatred against an identifiable group. In court, Keegstra attempted to claim that his actions were justifiable under the freedom of expression provisions of the Charter. The Supreme Court found that although Keegstra was right–that the limitations on the promotion of hatred was a violation of the freedom of expression provisions of the Charter, after applying the Oakes test, the Court found that the restriction on Keegstra’s freedom of expression was reasonably justified under s.1 of the Charter. In the context of a free and democratic society, the reasonable limits clause (s.1) serves as a safeguard for protecting human rights and limiting freedoms by balancing government power with individual liberty. Section 33: The Notwithstanding Clause
Section 33 of the Charter, the “notwithstanding clause” states that province governments can enact legislation that knowingly violates some of the rights and freedoms in certain situations, and in cases where that violation is reasonable. When a province invokes the notwithstanding clause, the legislation in question (and the use of the notwithstanding clause) must be reviewed every five years. The notwithstanding clause can only be applied to legislation that goes against the fundamental freedoms in s. 2, or the rights outlined in s. 7-14. Other sections, including those addressing democratic rights, mobility rights, language rights, minority language education rights, and the guaranteed equality of the sexes cannot be violated using the notwithstanding clause. At the time of writing (March 2021), s.33 has only been used seventeen times, and only by provincial governments. Much of the use of the notwithstanding clause has occurred in Quebec, where s.33 has historically been applied to legislation (including Bill 101) intended to protect and preserve the French language as the dominant language within Quebec. The more recent use of the notwithstanding clause to ensure that Bill 21 would not be overturned by the Supreme Court despite violating the Charter, has resulted in legal scholars questioning the extent to which s.33 violates fundamental freedoms under s. 2, the security of the person provisions under s.7, the equality provisions under s.15, as well as the gender equality provisions under s.28. The power of s.33 is that it allows provincial governments to enact province-specific legislation that does not comply with rights and freedoms guaranteed by the Charter, and its effect is that s.33 in some ways strengthens the division of powers under sections 91-92 of the Constitution Act 1867, as it allows provinces to make legislative decisions within their own jurisdictions without challenge from the federal government. Additional Resources: Contributors: Ashnoor Shaikh, Lily McDonald, Sanghun Kai Han, Aidan Forsythe
Section 1 applies to every section of the Canadian Charter of Rights and Freedoms. This section allows limits on our rights and freedoms when the limitation can be justified by the government. For example, a freedom may be limited in order to prevent infringement of the rights or freedoms of others. The rights and freedoms included in the Charter, although guaranteed, are not absolute. Section 1 states that in order for a Charter right to be lawfully limited, the limit must be "demonstrably justified in a free and democratic society."i This basically means that limiting someone's Charter rights must be reasonable in that it must seek to address an issue of pressing or substantial concern, done in a legal or lawful manner, and that it cannot have a disproportionate impact or effect. Several cases in Canada's judicial history since 1982 have required a careful analysis of the section 1. One such case is R v. Keegstraii. Mr. Keegstra, a History teacher in Alberta, taught that the Holocaust did not actually occur and was merely fabricated by Jewish people in order to gain the world's sympathy. He included these theories as required answers in tests and assignments. He was subsequently charged with promoting hate speech. Mr. Keegstra challenged the hate speech section of the Criminal Code as an unjustified limitation on his section 2(b) Charter rights, the freedom of expression. Without section 1 of the Charter, Mr. Keegstra's argument would have been successful. He was indeed exercising his right to free speech, which includes the right to say things that others may not agree with. It was task of the Crown to prove that limiting Mr. Keegstra's anti-Semitic teaching was acceptable in a free and democratic society. The Supreme Court decided that the Crown was justified in limiting Mr. Keegstra's freedom of expression because the impact of limiting Mr. Keegtra's section 2(b) of the Charter was not as severe as the damage caused by Mr. Keegstra's hate-spreading teachings. This case highlights that rights and freedoms guaranteed in the Charter are not absolute. It was necessary to limit Mr. Keegstra's freedom of speech in order to uphold his students' rights to be protected from discrimination. At times, it is necessary to limit rights and freedoms in consideration of the relative interests of other rights holders in society. Section 1 of the Charter allows governments and courts to balance competing interests. |
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