Section 1 – Reasonable limits

Provision

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.

Similar provisions

When enacted in 1982, section 1 of the Charter represented an innovation in human rights law, as it set out a general framework for justifying limits on rights and freedoms guaranteed in the Charter. There is no similar provision in the Canadian Bill of Rights.

With respect to international instruments binding on Canada, somewhat similar provisions may be found in the International Covenant on Economic, Social and Cultural Rights, which contains stand-alone limitation provisions in Articles 4 and 5. The International Covenant on Civil and Political Rights contains limitation provisions which are specific to certain rights: Articles 12 (mobility rights), 14(1) (open courts), 18 (freedom of thought, conscience and religion), 19 (freedom of expression and opinion), 21 (right of peaceful assembly) and 22 (freedom of association).

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: the South African Constitution’s Bill of Rights includes a very similar general limitation clause in section 36. The European Convention on Human Rights contains limitation clauses which are specific to rights and freedoms guaranteed under that Convention: Articles 8(2) (right to privacy), 9(2) (freedom of thought, conscience and religion), 10(2) (right to freedom of expression) and 11(2) (right to freedom of peaceful assembly and right to freedom of association); that Convention, however, does not contain a stand-alone limitation provision. The United States Bill of Rights does not contain a similar provision.

Purpose

Section 1 effects a balance between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed rights and freedoms. “Most modern constitutions recognize that rights are not absolute and can be limited if this is necessary to achieve an important objective and if the limit is appropriately tailored, or proportionate.” (Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610, at paragraph 36).

The values and principles which guide the Court in applying section 1 include 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 (R. v. Oakes, [1986] 1 S.C.R. 103 at page 136).

Analysis

1. General

Section 1 is engaged only after a finding has been made that a right or freedom has been limited.

The onus of proof under section 1 is on the person seeking to justify the limit, which is generally the government (Oakes, supra). The standard of proof is the civil standard or balance of probabilities (Oakes, supra).

"Demonstrably justified" connotes a strong evidentiary foundation. Cogent and persuasive evidence is generally required (Oakes, supra). Where scientific or social science evidence is available, it will be required; however, where such evidence is inconclusive, or does not exist and could not be developed, reason and logic may suffice (Libman v. Quebec (A.G.), [1997] 3 S.C.R. 569; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Thomson Newspapers Co. v. Canada (A.G.), [1998] 1 S.C.R. 877; R. v. Sharpe, [2001] 1 S.C.R. 45; Harper v. Canada (A.G.), [2004] 1 S.C.R. 827, at paragraph 77; R. v. Bryan, [2007] 1 S.C.R. 527, at paragraphs 16-19, 29; Mounted Police Association of Ontario v. Canada (Attorney General), [2015] 1 S.C.R. 3, at paragraphs 143-144). In some contexts, where the scope of the Charter infringement is minimal, social science evidence may not be necessary for a section 1 justification (B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), [2017] 1 S.C.R. 93).

2. "Prescribed by law"

In order to be capable of justification under section 1, the limit on the right or freedom must be "prescribed by law". The limit may be:

Discretionary administrative decision-making limiting a right or freedom was previously regarded as a limit ‘prescribed by law’ under section 1, and subject to the traditional Oakes test (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Ross v. New Brunswick School Board No. 15, [1996] 1 S.C.R. 825). The Court also previously held that government actions not authorized by statute are not ‘prescribed by law’ (Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, at paragraph 141). However, the Supreme Court revisited its jurisprudence in 2012 and concluded that when reviewing the exercise of discretionary authority and its compliance with the Charter, an administrative law-based analysis is preferred over a traditional section 1 Oakes test (Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, at paragraph 57). See “Discretionary Administrative Decision-Making” below for further discussion.

In order to be "prescribed by law", a limit must not be vague (see also "vagueness" under Charter section 7). Rather, it must be precise and ascertainable; there must be standards and criteria by which it may be determined (JTI-Macdonald, supra, at paragraphs 77-79; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Butler, supra). The test is whether the provision is so vague that it fails to provide an intelligible legal standard (R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Irwin Toy, supra; Butler, supra). However, it is only in rare cases that a provision will be held to be so vague as not to qualify as a limit prescribed by law (Nova Scotia Pharmaceutical, supra).

3. The Oakes test

A limit on a Charter right must be “reasonable” and “demonstrably justified.” The applicable test was originally set out in Oakes and is now well-established (see, e.g., Egan v. Canada, [1995] 2 S.C.R. 513, at paragraph 182; Vriend v. Alberta, [1998] 1 S.C.R. 493, at paragraph 108; Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, at paragraph 44; JTI-Macdonald, supra, at paragraphs 35-36):

  1. Is the legislative goal pressing and substantial? i.e., is the objective sufficiently important to justify limiting a Charter right?
  2. Is there proportionality between the objective and the means used to achieve it?

The second branch of the test has three elements:

  1. "Rational Connection": the limit must be rationally connected to the objective. There must be a causal link between the impugned measure and the pressing and substantial objective;
  2. "Minimal Impairment": the limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective. The government will be required to show that there are no less rights-impairing means of achieving the objective “in a real and substantial manner” (Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, at paragraph 102; citing Hutterian Brethren, [2009] 2 S.C.R. 567, at paragraph 55);
  3. "Final Balancing": there must be proportionality between the deleterious and salutary effects of the law (Carter, supra, at paragraph 122; JTI-Macdonald, supra, at paragraph 45).

Application of the Oakes test should not be approached in a mechanistic fashion; rather, it should be applied flexibly, having regard to the factual and social context of each case (RJR-MacDonald, supra, at paragraph 63; Ross, supra; Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Butler, [1992] 1 S.C.R. 452; Thomson Newspapers, supra, at paragraph 87)).

4. Pressing and substantial objective

The purpose of the law or infringing measure must be:

Since the proportionality branch of the section 1 test is tied to the objective, it is important to define the objective carefully and with precision. It cannot not be simply a description of the means the legislature has chosen to achieve its purpose (R. v. K.R.J., [2016] 1 S.C.R. 906, at paragraph 63).

Canada’s international treaty obligations may help to establish a pressing and substantial objective (Slaight Communications, supra, at pages 1056-57; Lavoie, supra, at paragraphs 56-58; Keegstra, supra, at page 750; Ross, supra, at paragraph 98; R. v. Lucas, [1998] 1 S.C.R. 439, at paragraph 50).

Laws may be found to infringe the Charter, usually under section 15 (equality rights), where they are “underinclusive” — that is, where they fail to include a group that should rationally benefit from the provision. In these cases, the legislation as a whole, the impugned provisions, and the omission itself are all properly considered (Vriend, supra, at paragraph 109). As there may not be a separate objective for the omission, the omission should be considered as a means of furthering the objectives of the specific provision in question and/or the legislation as a whole (M. v. H., [1999] 2 S.C.R. 3, at paragraph 101, involving a challenge to the exclusion of same sex couples from the definition of common law spouse under the Ontario Family Law Act). There may be exceptions to this general approach, such as when there is evidence of a deliberate omission by the legislature that is “on its face the very antithesis of the principles embodied in the legislation as a whole” (M. v. H., supra, at paragraph 101, citing Vriend).

Cost and/or administrative convenience alone have not traditionally been accepted by the Supreme Court as a pressing and substantial objective for the justification of an infringement (Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13 at paragraphs 152-153, 163; Health Services, supra, at paragraph 147; Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504; Figueroa, supra; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Reference re: Remuneration of Judges of the Provincial Court of P.E.I., [1997] 3 S.C.R. 3; Schachter v. Canada, [1992] 2 S.C.R. 679; R. v. Lee, [1989] 2 S.C.R. 1384; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177).

However, in Newfoundland (Treasury Board) v. Newfoundland and Labrador Assn. of Public and Private Employees (N.A.P.E.), [2004] 3 S.C.R. 381, the majority of the Supreme Court held that the need to address a "fiscal crisis" could constitute a pressing and substantial objective under section 1. The Court suggested that the financial health of the government as a whole would have to be in jeopardy and cuts would have to be made to more than just programs involving Charter-protected rights. The Court did note that “financial considerations wrapped up with other public policy considerations” could qualify as a pressing and substantial objective (N.A.P.E., supra, at paragraph 69). However, in Figueroa, supra, the Court indicated that: “There is no meaningful distinction between violating a Charter right for the purpose of advancing an otherwise valid objective in a cost-efficient manner and violating a Charter right for the purpose of preserving the public purse” (paragraph 65). In Hislop, supra, the Court recognized that cost “may be a factor” in the section 1 analysis but found there was an absence of evidence of cost to support such an analysis.

5. Proportionality

The means used to attain the objective of a provision must be proportional to the importance of that objective. The following three-step analysis is used to assess proportionality:

(i) Rational connection

The limit must be rationally connected to the objective. The government must demonstrate, on a balance of probabilities, a causal link between the impugned measure and the pressing and substantial objective. The measure must not be "arbitrary, unfair or based on irrational considerations" (Butler, supra; Thomson Newspapers, supra; Sharpe, supra).

The causal relationship between the limit and the objective should be proved, where possible, by scientific evidence showing that as a matter of repeated observation, one affects the other. However, when the causal relationship is not scientifically measurable (e.g., certain philosophical, political or social claims (Mounted Police Association of Ontario, supra) or, as discussed in Whatcott, the connection between limiting certain forms of speech and the objective to reduce or eliminate discrimination), evidence based on reason or logic may be sufficient to establish a “reasonable apprehension of harm” (RJR-MacDonald, supra; Sharpe, supra; Butler, supra; Harper, supra; JTI-Macdonald, supra at paragraph 41; Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 S.C.R. 467, at paragraph 132; Mounted Police Association of Ontario, supra, at paragraphs 143-144).

The Supreme Court has described the rational connection test as “not particularly onerous” (Health Services, supra, at paragraph 148; Little Sisters Book and Art Emporium supra, at paragraph 228; Trociuk v. British Columbia (Attorney General), [2003] 1 S.C.R. 835, at paragraph 34; JTI-MacDonald, supra, at paragraphs 40-41).The government need only show that it is “reasonable to suppose” that the limit or prohibition “may further the goal, not that it will do so” (Hutterian Brethren of Wilson Colony, supra, at paragraph 48; see also Mounted Police Association of Ontario, supra, at paragraphs 143-144). However, in certain cases, a more stringent rational connection analysis has been applied (Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, at paragraphs 95ff.).

This step of the test does not require all applications of an impugned law to be rationally connected to the legislative object; the Crown’s burden will be met as long as certain applications are rationally connected to the legislative object. (R. v. Appulonappa, [2015] 3 S.C.R. 754, at paragraph 80, citing R. v. Heywood, [1994] 3 S.C.R. 761, at page 803).

"Vagueness" may be considered at this stage but not overbreadth, which relates to minimal impairment (R. v. Morales, [1992] 3 S.C.R. 711; Nova Scotia Pharmaceutical, supra).

Where a legislatively-created presumption is at issue, this stage does not require that the presumption be internally rational in the sense that there is a logical connection between the presumed fact and the fact substituted by the presumption. It is sufficient to show that the presumption is a logical method of accomplishing the legislative objective, and the question of internal rationality is assessed under the third part of the proportionality test (R. v. Laba, [1994] 3 S.C.R. 965, at paragraphs 84 and 90).

(ii) Minimal impairment

The limit must impair the right or freedom "as little as possible" (Oakes, supra). However, Parliament cannot be held to a standard of perfection (R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713). It is sufficient if the means adopted fall within a range of reasonable options to achieve the legislative objective. (Sharpe, supra; RJR-MacDonald, supra, at paragraph 160). A government need not accept options which are less effective at achieving the objective than the one chosen (JTI-Macdonald, supra). In assessing whether the alternative is less effective, the test is not whether it satisfies the objective to exactly the same extent or degree as the option selected by the government. Rather, the test is whether the government can demonstrate that among the range of reasonable alternatives available, there is no other less rights-impairing means of achieving the objective in a real and substantial manner (Hutterian Brethren, supra, at paragraph 55; Carter, supra, at paragraph 102, 118; R. v. K.R.J., supra, at paragraph 70).

The law must be carefully tailored to its objectives and must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account (Sharpe, supra, at paragraphs 95-96; see also Nova Scotia Pharmaceutical, supra; R. v. Chaulk, [1990] 3 S.C.R. 1303; Trociuk v. B.C. (A.G.), [2003] 1 S.C.R. 835; RJR-MacDonald, supra, at paragraph 160).

Governments should adduce evidence as to why less intrusive and equally effective measures were not chosen (Thomson Newspapers, supra, at paragraphs 118-119; RJR MacDonald, supra, at paragraph 160, Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, at paragraphs 69, 76, 86). Evidence of consultation with affected parties may help establish that a range of options was explored (Health Services, supra, at paragraph 157).

Where the validity of a law is at stake, courts should not use the “reasonable accommodation” analysis that is used under human rights legislation. Instead, the appropriate approach is a section 1 Charter analysis based on the Oakes test. On the other hand, where a government action or administrative practice is challenged, the case law on the duty to accommodate may be helpful “to explain the burden resulting from the minimal impairment test with respect to a particular individual.” (Hutterian Brethren, supra, clarifying the Court’s approach in Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256 and Eldridge, supra).

In determining whether a scheme is reasonably minimally impairing, courts may look to laws and practices in other jurisdictions (Carter, supra, at paragraphs 103-104; JTI-MacDonald, supra, at paragraph 138; Charkaoui, supra, at paragraphs 81-84; Lavoie, supra, at paragraphs 66-67). However, in examining the practices of other Canadian jurisdictions, courts must be alive to the values of federalism and avoid using minimal impairment as a means of imposing uniformity between jurisdictions. (Québec (AG) v. A, supra, at paragraph 440 and R. v. Advance Cutting and Coring Ltd., [2001] 3 S.C.R. 209 at paragraph 275). In addition, courts may look to international treaties to which Canada is a party (JTI-Macdonald, supra, at paragraph 10; Whatcott, supra, at paragraph 67).

(iii) Proportionality or final balancing

The final stage of Oakes requires that the salutary effects of the impugned law – typically with reference to the anticipated attainment of the asserted legislative objective – outweigh its deleterious effects (Frank, supra, at paragraphs 38, 76). This allows for a broader assessment of whether the benefits of the impugned law in terms of the public good are worth the cost of the rights limitation (R. v. K.R.J., supra, at paragraph 77, citing Carter, supra, at paragraph 122). The first three stages of Oakes are anchored in an assessment of the law’s purpose. Only the fourth branch takes full account of the severity of the deleterious effects of a measure on individuals or groups (Hutterian Bretheren, supra, at paragraph 76).

“This inquiry focuses on the practical impact of the law. What benefits will the measure yield in terms of the collective good sought to be achieved? How important is the limitation on the right? When one is weighed against the other, is the limitation justified?” (JTI-MacDonald, supra, at paragraph 45; see also Lavoie, supra; Dagenais, supra).

R. v. K.R.J., supra, is the only case where the Supreme Court has decided that the measure serves a pressing and substantial objective, is rationally connected to that objective, is minimally impairing but nevertheless fails at the final balancing stage. Some past jurisprudence has, however, reaffirmed the importance of final balancing (JTI-MacDonald, supra, at paragraph 46; Hutterian Brethren, supra, at paragraphs 72-78).

6. Context and deference

The Supreme Court has repeatedly emphasized that the specific factual and social context of a case plays a key role in justifying a limitation on a Charter right under section 1 (Thomson Newspapers, supra, at paragraph 87; RJR-MacDonald, supra, at paragraph 63).

Some factors support greater deference:

Certain contexts do not support deference:

The nature of certain rights makes deference inappropriate. For example:

The fact that a law represents Parliament’s response to a Supreme Court decision does not militate for or against deference (JTI-Macdonald, supra, at paragraph 11).

In a series of cases, Bastarache J. considered, as a separate analysis preceding the Oakes test, a relatively formal series of four contextual factors intended to determine the appropriate level of deference in the case: the nature of the harm and the inability to measure it, the vulnerability of the group the government seeks to protect, the group's subjective apprehension of the harm, and the nature of the infringed activity (Thomson Newspapers, supra; Harper, supra; R. v. Bryan, [2007] 1 S.C.R. 527). Although Bastarache J. wrote for the majority in both Thomson Newspapers and Harper, subsequent Supreme Court decisions have found deference is appropriate without applying these factors – e.g. JTI-Macdonald, supra; Hutterian Brethren, supra, Whatcott, supra.

7. Discretionary administrative decision-making

The SCC has developed a distinct framework for determining whether discretionary administrative decisions comply with the Charter (Doré, supra; Loyola High School v Quebec (Attorney General), [2015] 1 S.C.R. 613).

Where a discretionary administrative decision engages the Charter’s “protections” (which include both Charter rights and the values that “underpin” those rights), a decision-maker must first consider the relevant statutory objectives. The decision-maker must then consider how the Charter protection at play can best be protected in light of the statutory objectives. This second step requires the decision-maker to balance the severity of the interference with the Charter protection against the statutory objectives (Doré, supra at paragraphs 55-57; Loyola, supra, at para. 39; Law Society of British Columbia v. Trinity Western University, [2018] 2 S.C.R. 293 at paragraph 58). The second step is similar to the minimal impairment and overall proportionality / final balancing steps of the Oakes test (Loyola, supra, at para. 40; Trinity Western, supra, at paragraph 82). It is not a “weak or ‘watered down’ version of proportionality” but instead a “robust” one, working the same “justificatory muscles” as the Oakes test (Doré, supra, at paragraph 5; Loyola, supra, at paragraph 40; Trinity Western, supra, at paragraphs 79-80, 82).  

The Charter “protection” may not be “engaged” if the claimant is unable to establish – using the tests developed in the jurisprudence – that the right in question was infringed (Ktunaxa Nation v. British Columbia, [2017] 2 S.C.R. 386 at paragraph 75; Trinity Western University v. Law Society of Upper Canada, [2018] 2 S.C.R. 453 at paragraph 63).

On judicial review, the standard of review applicable to the decision-maker’s balancing of Charter protections and statutory objectives is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paragraph 57; Doré, supra, at paragraphs 43-45). The decision will be found to be reasonable if it reflects a proportionate balancing of the Charter protections at issue, in light of the nature of the decision, the statutory context and the particular facts (Doré, supra, at paragraph 58).

8. Evidence under section 1

The onus of proving a section 1 justification rests with the government, and the government should be prepared to adduce appropriate evidence. It should, therefore, engage in careful planning and record keeping. Given that the purpose of the limit must be the purpose at the time at which it is implemented (see discussion of “shifting purpose” above), the groundwork for a section 1 justification should be laid during the process of policy development. While the purpose should usually be obvious from the text of the legislation itself, it is often useful to have supporting evidence as well. This means that the development of policy must be carefully documented and prepared in a form that will later be appropriate for introduction as evidence in court. The documentation will also be useful to assist in the passage of the legislation through the House. In addition, there should be continued monitoring of the legislative initiative to ensure that the purpose remains important and to enable the supplementing of the original evidence. Although in some cases the pressing and substantial objective of the legislation and an impugned provision may be deduced from the legislation itself, in other cases evidence will be required (Hislop, supra, at paragraph 49; see also Bryan, supra, at paragraphs 32-34 (holding that some objectives can be accepted on the basis of an assertion)).

Similarly, the preparation of evidence as to rational connection and minimal impairment should begin at the policy development stage and continue throughout the life of the legislative provision. At the rational connection stage “some evidence” may suffice, provided logic and reason support the existence of a connection (Bryan, supra, at paragraph 41). As indicated above, to establish minimal impairment there should be evidence available as to why less intrusive and equally effective measures were not chosen (Thomson Newspapers, supra, at paragraphs 118-119; RJR MacDonald, supra, at paragraphs 160 and 163; Charkaoui, supra, at paragraphs 69, 76, 86). Finally, evidence of proportionality may require continued monitoring to determine the actual negative and positive effects of the legislative provision.

In order for legislation to be effectively defended, it is important that the evidence be available in a form which can be made public.

The following types of evidence may be useful in mounting a section 1 justification: