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{{Currency2|January|2019}}
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==General Principles==
Section 1 of the ''Canadian Charter of Rights and Freedoms'' states:
{{quotation2|
; Guarantee of Rights and Freedoms
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.
|[http://canlii.ca/t/8q7l#sec1 CCRF]
|{{NoteUpCCRF|1}}
}}
This provision is also known as the "reasonable limits clause" or "limitations clause", as it legally allows the government to limit an individual's Charter rights. Wherever there is a violation of the legal rights (s. 7 to 12) of the ''Charter'', s. 1 governs whether the violation is permissible and exempted from any remedy under s. 24 of the ''Charter''.
; Burden and Standard of Proof
Where a violation of a legal right has been found, the burden is upon the Crown to justify limiting the right under s. 1.<ref>
{{CanLIIRP|Oakes|1ftv6|1986 CanLII 46 (SCC)|[1986] 1 SCR 103}}{{perSCC|Dickson CJ}}
</ref>
The standard of proof is on a balance of probabilities.<ref>
{{ibid1|Oakes}}<br>
R v Sharpe at para 102{{fix}}
</ref>
; "Demonstrably Justified"
The phrase "demonstrably justified" means that there must be a "cogent and persuasive."<ref>
{{ibid1|Oakes}} ("Where evidence is required in order to prove the constituent elements of a s. 1 inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit")
</ref>
Generally, the Crown must demonstrate the justification using empirical evidence.
Where the science or social science justifying the limitation is inconclusive, the Crown may rely on "reason and logic."<ref>
{{CanLIIRPC|Libman v Quebec (A.G.)|1fr09|1997 CanLII 326 (SCC)|[1997] 3 SCR 569}}{{TheCourtSCC}}<br>
{{CanLIIRPC|RJR-MacDonald Inc v Canada (Attorney General)|1frgz|1995 CanLII 64 (SCC)|[1995] 3 SCR 199}}{{perSCC-H|McLachlin J}}<br>
{{CanLIIRPC|Thomson Newspapers Co. v Canada (A.G.)|1fqrv|1998 CanLII 829 (SCC)|[1998] 1 SCR 877}}{{perSCC-H|Bastarache J}}<br>
{{CanLIIRP|Sharpe|523f|2001 SCC 2 (CanLII)|[2001] 1 SCR 45}}{{perSCC-H|McLachlin CJ}}<br>
{{CanLIIRPC|Harper v Canada (A.G.)|1h2c9|2004 SCC 33 (CanLII)|[2004] 1 SCR 827}}{{perSCC-H|Bastarache J}}{{atL|1h2c9|77}}<br>
{{CanLIIRP|Bryan|1qsvr|2007 SCC 12 (CanLII)|[2007] 1 SCR 527}}{{perSCC-H|Bastarache J}}{{atsL|1qsvr|16| to 19}}, {{atsL-np|1qsvr|29|}}<br>
{{CanLIIRPC|Mounted Police Association of Ontario v Canada (Attorney General)|gfxx8|2015 SCC 1 (CanLII)|[2015] 1 SCR 3}}{{perSCC-H|McLachlin CJ and LeBel J}}{{atsL|gfxx8|143| to 144}}
</ref>
In cases of minimal breaches, the absence of social science is of less importance.<ref>
e.g. {{CanLIIRPC|B.C. Freedom of Information and Privacy Association v British Columbia (Attorney General)|gx3xm|2017 SCC 6 (CanLII)|[2017] 1 SCR 93}}{{perSCC-H|McLachlin CJ}}<br>
</ref>
{{reflist|2}}
===Section 7 Violations===
; Overbroad and Grossly Disproportionate
Where legislation is found to be overbroad or grossly disproportionate it is generally not justifiable under s. 1 of the Charter.<ref>
{{CanLIIRP|Boutilier|grx23|2016 BCCA 235 (CanLII)|336 CCC (3d) 293}}{{perBCCA|D Smith J}}{{atL|grx23|84}}<br>
{{CanLIIRPC|Canada (AG) v Bedford|g2f56|2013 SCC 72 (CanLII)|[2013] 3 SCR 1101}}{{perSCC-H|McLachlin CJ}}{{atL|g2f56|129}}<br>
{{CanLIIRPC|Carter v Canada (AG)|gg5z4|2015 SCC 5 (CanLII)|[2015] 1 SCR 331}}{{TheCourtSCC}}{{atL|gg5z4|95}}<br>
</ref>
{{reflist|2}}
==Prescribed by Law==
The limitations on rights must be "prescribed by law". This refers to the requirement that the limitation on rights is the result of some conduct of a government or its agents following some accessible and intelligible law.
The requirement here is concerned with those limitations that are arbitrary and not supported by law.<ref>
{{CanLIIRP|Therens|1fv11|1985 CanLII 29 (SCC)|[1985] 1 SCR 613}}{{perSCC|Le Dain J}} (dissent){{atL|1fv11|60}} ("The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary.") but affirmed in ''Orbanski''<br>
{{CanLIIRP|Orbanski; R v Elias|1l0b0|2005 SCC 37 (CanLII)|[2005] 2 SCR 3}}{{atL|1l0b0|36}}
</ref>
A law will be invalid where it is too vague as "where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances."<ref>
{{CanLIIRPC|Irwin Toy Ltd v Quebec (Attorney General)|1ft6g|1989 CanLII 87 (SCC)|[1989] 1 SCR 927}}{{perSCC|Dickson C.J. and Lamer and Wilson JJ}}</ref>
; Meaning of "Law"
"Law" in this context refers to both the common law as well as statutory law or regulations.<ref>
{{CanLIIRP|Shupe|27w0j|1987 CanLII 3171 (AB QB)|38 CCC (3d) 64}}{{perABQB|Cooke J}}{{atL|27w0j|19}}<br>
{{supra1|Therens}}{{atL|1fv11|60}} ("The limit may also result from the application of a common law rule.") aff'd in ''Orbanski''
</ref>
The limitation can be created expressly by law or "by necessary implication from the terms of a statute or regulation or from its operating requirements."<ref>
{{supra1|Therens}}{{atL|1fv11|60}} ("The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. ")<br>
{{supra1|Orbanski}}{{atL|1l0b0|36}}<br>
</ref>
; Law Includes Policy
Certain types of policy can fall into the meaning of "law". The policy must be found to have the following:
<ref>
{{CanLIIRPC|Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component|24cnk|2009 SCC 31 (CanLII)|[2009] 2 SCR 295}}{{atL|24cnk|50}} (For policy to be included in s.1, "it must be asked whether the government entity was authorized to enact the impugned policies and whether the policies are binding rules of general application. If so, the policies can be “law” for the purposes of s. 1. At the second stage of the enquiry, ... it must be determined whether the policies are sufficiently precise and accessible.")
</ref>
# the government entity was authorized to enact the policy
# the policy is of "general application"
# the policy is "sufficiently precise and accessible"
The requirements for a policy are meant to distinguish between policies that are "legislative" in nature and those that are "administrative" in nature.<ref>
{{supra1|Greater Vancouver}}{{atL|24cnk|64}} ("Where a policy is not administrative in nature, it may be “law” provided that it meets certain requirements.") and{{atL|24cnk|65}} ("Thus, where a government policy is authorized by statute and sets out a general norm or standard that is meant to be binding and is sufficiently accessible and precise, the policy is legislative in nature and constitutes a limit that is “prescribed by law”.")
</ref>
Those that are legislative are ones that are of "general application" and establish a "norm."<ref>
{{supra1|Greater Vancouver}}{{atL|24cnk|64}} ("In order to be legislative in nature, the policy must establish a norm or standard of general application that has been enacted by a government entity pursuant to a rule-making authority.")
</ref>
Those that are administrative are created for the purpose of "administrative efficiency". They are for internal use only and are often informal. They are sometimes simply used as interpretive aids rather than setting out rights and obligations.<ref>
{{supra1|Greater Vancouver}}{{atL|24cnk|63}} ("Administrative rules relate to the implementation of laws contained in a statutory scheme and are created for the purpose of administrative efficiency. The key question is thus whether the policies are focussed on “indoor” management.  In such a case, they are meant for internal use and are often informal in nature; ... . Such rules or policies act as interpretive aids in the application of a statute or regulation.")
</ref>
{{Reflist|2}}
==Oakes Test==
The test to determine if the purpose of the law is demonstrably justifiable in a free and democratic society is known as the "Oakes Test."<ref>
{{CanLIIRP|Oakes|1ftv6|1986 CanLII 46 (SCC)|[1986] 1 SCR 103}}{{perSCC|Dickson CJ}}</ref>
The test is applied once the claimant has proven that one of the provisions of the Charter has been violated.
The onus is on the Crown to pass the Oakes test. A violation of a right can only be justified where the following elements are made out on a balance of probabilities:
#There must be a pressing and substantial objective
#The means must be proportional
##The means must be rationally connected to the objective
##There must be minimal impairment of rights
##There must be proportionality between the infringement and objective
{{Reflist|2}}
==Pressing and Substantial Objective==
The first branch of the ''Oakes'' test requires that the law have a "pressing and substantial objective".
A sufficiently "pressing and substantial" objective is one that is "consistent with some of the foundational principles on which our particular free and democratic society is based."<ref>
{{CanLIIRPC|Figueroa v Canada (Attorney General)|1g6pl|2003 SCC 37 (CanLII)|[2003] 1 SCR 912}}{{perSCC|Lebel J}} (concurring){{atL|1g6pl|180}}<br>
{{CanLIIRPC|Vriend v Alberta|1fqt5|1998 CanLII 816 (SCC)|[1998] 1 SCR 493}}{{perSCC|Cory and Iacobucci JJ}}<br>
</ref>
Or stated in another way, they cannot be "discordant" with "the principles integral to a free and democratic society."<ref>
{{ibid1|Figueroa}}{{atL|1g6pl|80}}{{perSCC|Iacobucci J}}
</ref>
{{reflist|2}}
==Minimal Impairment==
The impugned right must be restricted "as little as possible."<ref>
{{CanLIIRP|Oakes|1ftv6|1986 CanLII 46 (SCC)|[1986] 1 SCR 103}}{{perSCC|Dickson CJ}}
</ref>
However, it is only necessary that the impairment be simply within a range of reasonable options. It does not need to be optimal.<ref>
{{CanLIIRPC|RJR-MacDonald Inc v Canada (Attorney General)|1frgz|1995 CanLII 64 (SCC)|[1995] 3 SCR 199}}{{perSCC-H|McLachlin J}}{{atL|1frgz|160}}<br>
{{CanLIIRP|Sharpe|523f|2001 SCC 1 (CanLII)|[2001] 1 SCR 45}}{{perSCC| McLachlin CJ}}{{atL|523f|96}} ("This Court has held that to establish justification it is not necessary to show that Parliament has adopted the least restrictive means of achieving its end.  It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted.")
</ref>
The purpose of this inquiry is to decide whether "there are less harmful means of achieving the legislative goal."<ref>
{{ibid1|Carter}}{{atL|gg5z4|102}}
</ref>
It ensures that the rights deprivation is "confined what is reasonably necessary to achieve" the legislation's objective.<ref>
{{ibid1|Carter}}{{atL|gg5z4|102}} ("The analysis at this stage is meant to ensure that the deprivation of Charter rights is confined to what is reasonably necessary to achieve the state’s object.")
</ref>
The main question at the impairment stage is "whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner."<Ref>
{{CanLIIRPC|Alberta v Hutterian Brethren of Wilson Colony|24rr4|2009 SCC 37 (CanLII)|[2009] 2 SCR 567}}{{perSCC-H|McLachlin CJ}}{{atL|24rr4|55}} ("The test at the minimum impairment stage is whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner.")<br>
{{CanLIIRPC|Carter v Canada (Attorney General)|gg5z4|2015 SCC 5 (CanLII)|[2015] 1 SCR 331}}{{atsL|gg5z4|102|}}, {{atsL-np|gg5z4|118|}}<br>
{{CanLIIRP|KRJ|gsm3w|2016 SCC 31 (CanLII)|[2016] 1 SCR 906}}{{atL|gsm3w|70}}<br>
</ref>
The burden is upon the government to show the absence of "less drastic means of achieving the objective in a real and substantial manner."<ref>
{{supra1|Carter}}{{atL|gg5z4|103}} ("The burden is on the government to show the absence of less drastic means of achieving the objective in a real and substantial manner" [quotes removed])
</ref>
In considering the efficiency of the objective, it is not necessary that the alternative would achieve the objective "to exactly the same extent or degree" as the impugned law.<ref>
{{ibid1|Hutterian Brethren}}{{atL|24rr4|55}}("...in considering whether the government’s objective could be achieved by other less drastic means, the court need not be satisfied that the alternative would satisfy the objective to exactly the same extent or degree as the impugned measure.  In other words, the court should not accept an unrealistically exacting or precise formulation of the government’s objective which would effectively immunize the law from scrutiny at the minimal impairment stage.")
</ref>
The objective should need to be defined so precisely or exactly as to render all alternatives insufficient.<ref>
{{ibid1|Hutterian Brethren}}
</ref>
The law must be "reasonably tailored" to the objective so as to impair no more than "reasonably necessary" in consideration of "the practical difficulties and conflicting tensions" arising from the law.<ref>
{{CanLIIRP|Sharpe|523f|2001 SCC 2 (CanLII)|[2001] 1 SCR 45}}{{perSCC-H|Sharpe CJ}}{{atL|523f|96}}
{{supra1|RJR-MacDonald}}{{AtL|1frgz|160}} (" The law must be reasonably tailored to its objectives; it must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account")<br>
{{CanLIIRP-C|Carter v Canada (Attorney General)|gg5z4|2015 SCC 5 (CanLII)|[2015] 1 SCR 331}}{{TheCourtSCC}}{{atL|gg5z4|102}}<br>
{{CanLIIRPC|Alberta v Hutterian Brethren of Wilson Colony|24rr4|2009 SCC 37 (CanLII)|[2009] 2 SCR 567}}{{perSCC|McLachlin CJ}}{{atL|24rr4|53}} (law must be "reasonably tailored to the pressing and substantial  goal put forward to justify the limit")<br>
</ref>
It must be considered that any attempt to protect one right may intrude on another right. There can be no perfect balance between them.<ref>
{{CanLIIRP|Edwards Books and Art Ltd|1ftpt|1986 CanLII 12 (SCC)|[1986] 2 SCR 713}}{{atL|1ftpt|183}}("Moreover, attempts to protect the rights of one group will also inevitably impose burdens on the rights of other groups. There is no perfect scenario in which the rights of all can be equally protected.")<br>
{{supra1|Sharpe}}
</ref>
; Evidence of Policy Evaluation
The government should be expected to present evidence show ''why'' the ultimate position was chosen.<ref>
{{CanLIIRP-C|Thomson Newspapers Co. v Canada (Attorney General)|1fqrv|1998 CanLII 829 (SCC)|[1998] 1 SCR 877}}{{perSCC-H|Bastarache J}}{{atsL|1fqrv|118| to 119}} <br>
{{supra1|RJR MacDonald}}{{atL|1frgz|160}} ("...if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail")<br>
{{CanLIIRP-C|Charkaoui v Canada (Citizenship and Immigration)|1qljj|2007 SCC 9 (CanLII)|[2007] 1 SCR 350}}{{perSCC-H|McLachlin CJ}}{{atsL|1qljj|69|, 76, 86}}<br>
</ref>
Showing that the government engaged in consultation with the affected parties will help establish that the government considered all the options when legislating.<ref>
{{CanLIIRP-C|Health Services and Support - Facilities Subsector Bargaining Assn. v British Columbia|1rqmf|2007 SCC 27 (CanLII)|[2007] 2 SCR 391}}{{perSCC| J}}{{atL|1rqmf|157}} (" Legislators are not bound to consult with affected parties before passing legislation.  ...it may be useful to consider, in the course of the s. 1 justification analysis, whether the government considered other options or engaged consultation with the affected parties, in choosing to adopt its preferred approach.  The Court has looked at pre-legislative considerations in the past in the context of minimal impairment.  This is simply evidence going to whether other options, in a range of possible options, were explored.")
</ref>
; Sources for Guidance
The court may look at other countries as well as other provinces.<Ref>
{{supra1|Carter}}{{atL|gg5z4|103| to 104}}<br>
{{CanLIIRP-C|Canada (Attorney General) v JTI-Macdonald Corp.|1rvv2|2007 SCC 30 (CanLII)|[2007] 2 SCR 610}}{{perSCC-H|McLachlin CJ}}{{atL|1rvv2|138}}<br>
{{CanLIIRP-C|Charkaoui v Canada (Citizenship and Immigration)|1qljj|2007 SCC 9 (CanLII)|[2007] 1 SCR 350}}{{perSCC-H|McLachlin CJ}}{{atsL|1qljj|81| to 84}}<br>
{{CanLIIRP-C|Lavoie v Canada|51sx|2002 SCC 23 (CanLII)|[2002] 1 SCR 769}}{{perSCC|Bastarache CJ}}{{atsL|51sx|66| to 67}}<br>
</ref>
However, there must be consideration for the different social issues and needs for each province. <ref>
{{CanLIIRP-C|Quebec (Attorney General) v A|2013 SCC 5 (CanLII)|[2013] 1 SCR 61}}{{AtL|fvsc0|449}}{{perSCC|Deschamps J}} (dissenting in part){{At-nc|fvsc0|449}} ("Having regard to the need to allow legislatures a margin of appreciation on difficult social issues and the need to be sensitive to the constitutional responsibility of each province to legislate for its population, the answer to this question is no.")
</ref>
The Court may consider international treaties signed by Canada.<ref>
{{supra1|JTI-Macdonald}}{{AtL|1rvv2|10}}<br>
{{CanLIIRP-C|Saskatchewan (Human Rights Commission) v Whatcott|fw8x4|2013 SCC 11 (CanLII)|[2013] 1 SCR 467}}{{atL|fw8x4|67}}{{perSCC|Rothstein J}}{{atL|fw8x4|67}} ("The balancing of competing Charter rights should also take into account Canada’s international obligations with respect to international law treaty commitments: ... Those commitments reflect an international recognition that certain types of expression may be limited in furtherance of other fundamental values: ")<br>
</ref>
{{reflist|2}}
==Rational Connection==
To show a rational connection, the government must show that it is reasonable to believe that the limit "may"&ndash;but not necessarily&ndash;advance the goal.<Ref>
{{CanLIIRPC|Alberta v Hutterian Brethren of Wilson Colony|24rr4|2009 SCC 37 (CanLII)|[2009] 2 SCR 567}}{{perSCC|McLachlin CJ}}{{atL|24rr4|48}}<br>
</ref>
Where the law does not in practice advance the goal, it may come into play on the third stage of analysis when balancing is considered.
The impugned law cannot be "arbitrary, unfair or based on irrational considerations."<ref>
{{CanLIIRP|Oakes|1ftv6|1986 CanLII 46 (SCC)|[1986] 1 SCR 103}}{{Atp|139}}
</ref>
There must be a "rational connection" (or "causal link") "between the purpose of the law and the means adopted to effect this purpose."<Ref>
{{CanLIIRP|Sharpe|523f|2001 SCC 2 (CanLII)|[2001] 1 SCR 45}}{{perSCC-H|MacLachlin J}}{{atL|523f|94}}<br>
{{CanLIIRPC|Health Services and Support - Facilities Subsector Bargaining Assn. v British Columbia|1rqmf|2007 SCC 27 (CanLII)|[2007] 2 SCR 391}}{{atL|1rqmf|148}} (" the government must establish, on the balance of probabilities, that the means adopted in the Act are rationally connected to achieving its pressing and substantial objectives.")
{{CanLIIRPC|Trociuk v British Columbia (Attorney General)|1g6ph|2003 SCC 34 (CanLII)|[2003] 1 SCR 835}}{{atL|1g6ph|34}}("the rational connection requirement is satisfied where there is “a link or nexus based on and in accordance with reason, between the measures enacted and the legislative objective”.")
</ref>
There is no requirement of certainty of scheme's effectiveness. It is only necessary that the limtiation "may further the goal, not that it will do so."<ref>
{{supra1|Alberta v Hutterian Brethren}}{{atL|24rr4|48}}<br>
see also {{CanLIIRPC|Mounted Police Association of Ontario v Canada (Attorney General)|gfxx8|2015 SCC 1 (CanLII)|[2015] 1 SCR 3}}{{perSCC-H|McLachlin C.J. and LeBel J}}{{atsL|gfxx8|143| to 144}}<br>
</ref>
This stage should not be "particularly onerous."<ref>
{{supra1|Health Services}}{{atL|1rqmf|148}}<br>
{{CanLIIRPC|Little Sisters Book and Art Emporium v Canada (Minister of Justice)|5239|2000 SCC 69 (CanLII)|[2000] 2 SCR 1120}}{{atL|5239|228}}<br>
{{supra1|Trociuk v British Columbia (Attorney General)}}{{atL|1g6ph|34}}<br>
{{CanLIIRPC|Canada (Attorney General) v JTI-Macdonald Corp|1rvv2|2007 SCC 30 (CanLII)|[2007] 2 SCR 610}}{{perSCC-H|McLachlin CJ}}{{atsL|1rvv2|40| to 41}}<br>
</ref>
; SOIRA Orders
It was accepted by the court that parliament is permitted to infer that someone who is convicted of more than one sex offence is more likely to be of greater concern to the public risk, irrespective of whether multiple offences arise out of a single incident.<Ref>
{{CanLIIRP|Long|hr4fz|2018 ONCA 282 (CanLII)|45 CR (7th) 98}}{{perONCA|Strathy CJ}}{{atL|hr4fz|131}} ("Parliament was entitled to draw the inference that conviction of more than one sexual offence is logically probative of an offender’s enhanced propensity to commit further sexual offences and is linked to an elevated risk of re-offending.")
</ref>
{{reflist|2}}
==Proportional Balancing==
The proportionality stage is where the court must "weigh the impact of the law on protected rights against the beneficial effects of the law" on the public good.<ref>
{{CanLIIRP|KRJ|gsm3w|2016 SCC 31 (CanLII)|[2016] 1 SCR 906}}{{perSCC|Karakatsanis J}}{{atL|gsm3w|77}} (" At this final stage of the proportionality analysis, the Court must “weig[h] the impact of the law on protected rights against the beneficial effect of the law in terms of the greater public good”")<br>
{{CanLIIRP-C|Carter v Canada (Attorney General)|gg5z4|2015 SCC 5 (CanLII)|[2015] 1 SCR 331}}{{TheCourtSCC}}{{atL|gg5z4|122}} ("This stage of the Oakes analysis weighs the impact of the law on protected rights against the beneficial effect of the law in terms of the greater public good.  Given our conclusion that the law is not minimally impairing, it is not necessary to go on to this step.")
</ref>
Previous stages focus on the purpose of the law. This stage is the only one to take into account for the "severity of the deleterious effects of a measure on individuals or groups."<ref>
{{CanLIIRPC|Alberta v Hutterian Brethren of Wilson Colony|24rr4|2009 SCC 37 (CanLII)|[2009] 2 SCR 567}}{{perSCC-H|McLachlin CJ}}{{atL|24rr4|76}}<br>
</ref>
The other steps do not consider the "relationship between the measures and the Charter right". They only consider the "relationship between the ends of the legislation and the means employed."<ref>
{{CanLIIRP-C|Thomson Newspapers Co. v Canada (Attorney General)|1fqrv|1998 CanLII 829 (SCC)|[1998] 1 SCR 877}}{{perSCC-H|Bastarache J}}{{atL|1fqrv|125}}
</ref>
It considers the impact of the law. It includes consideration of the collective good to be achieved.<ref>
{{CanLIIRP-C|Canada (Attorney General) v JTI-Macdonald Corp|1rvv2|2007 SCC 30 (CanLII)|[2007] 2 SCR 610}}{{perSCC-H|McLachlin CJ}}{{atL|1rvv2|45}} ("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?")<br>
</ref>
The balance between positive and negative effects of the law must be "measured by the values underlying the Charter."<Ref>
{{supra1|Thomson Newspapers}}{{atL|1fqrv|125}} ("The third stage of the proportionality analysis provides an opportunity to assess, in light of the practical and contextual details which are elucidated in the first and second stages, whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by the values underlying the Charter. ")
</ref>
The salutary effects must be those that "actually result" from the implementation of the law.<Ref>
{{CanLIIRP-C|Dagenais v Canadian Broadcasting Corp.|1frnq|1994 CanLII 39 (SCC)|[1994] 3 SCR 835}}{{perSCC|Lamer CJ}}{{atp|887}} ("...I believe that the third step of the second branch of the Oakes test requires both that the underlying objective of a measure and the <u>salutary effects</u> that actually result from its implementation be proportional to the deleterious effects the measure has on fundamental rights and freedoms.")
</ref>
This final stage is where the "conceptual heavy lifting and balancing" takes place.<ref>
{{supra1|KRJ}}{{atsL|gsm3w|78| to 79}} ("most of the heavy conceptual lifting and balancing ought to be done at the final step ...  It is only at this final stage that courts can transcend the law’s purpose and engage in a robust examination of the law’s impact on Canada’s free and democratic society ")
</ref>
This is where the court determines "on a normative basis whether a rights infringement is justified in a free and democratic society."<ref>
{{supra1|KRJ}}{{atL|gsm3w|79}}
</ref>
In assessment, the court must make value judgments. These judgements should be explicit to ensure transparency.<ref>
{{supra1|KRJ}}{{atL|gsm3w|79}}
</ref>
There must be "appropriate deference" to the legislators "choice of means" and its full legislative objective.<ref>
{{supra1|KRJ}}{{atL|gsm3w|79}} ("Further, as mentioned, proceeding to this final stage permits appropriate deference to Parliament’s choice of means, as well as its full legislative objective.")
</ref>
It is in the rare case where the law satisfies all previous stages but fails on the balancing.<ref>
e.g. {{supra1|KRJ}}
</ref>
{{reflist|2}}
==Deference to Social Context==
The assessment is highly sensitive to the factual and cultural context of the law.<ref>
{{CanLIIRP-C|Thomson Newspapers Co. v Canada (Attorney General)|1fqrv|1998 CanLII 829 (SCC)|[1998] 1 SCR 877}}{{perSCC-H|Bastarache J}}{{atL|1fqrv|87}} (" The analysis under s. 1 of the Charter must be undertaken with a close attention to context. ... This is inevitable as the test devised in R v Oakes, [citation omitted], requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses.")<br>
{{CanLIIRPC|RJR-MacDonald Inc v Canada (Attorney General)|1frgz|1995 CanLII 64 (SCC)|[1995] 3 SCR 199}}{{perSCC-H|McLachlin J}}{{atL|1frgz|63}} ("This Court has on many occasions affirmed that the Oakes requirements must be applied flexibly, having regard to the specific factual and social context of each case.")<br>
</ref>
There will be greater defence where there the legislators have superior institutional competence.<ref>
{{CanLIIRP-C|M v H|1fqm4|1999 CanLII 686 (SCC)|[1999] 2 SCR 3}}{{perSCC|Iacobucci J}} (6:1){{atL|1fqm4|78}} ("As a general matter, the role of the legislature demands deference from the courts to those types of policy decisions that the legislature  is best placed to make.")
</ref>
This means that complex social problems or a complex regulatory response may be a reason to be deferential to the legislators.<Ref>
{{CanLIIRP-C|Saskatchewan (Human Rights Commission) v Whatcott|fw8x4|2013 SCC 11 (CanLII)|[2013] 1 SCR 467}}{{perSCC|Rothstein J}}{{atL|fw8x4|78}}<br>
{{CanLIIRP-C|Alberta v Hutterian Brethren of Wilson Colony|24rr4|2009 SCC 37 (CanLII)|[2009] 2 SCR 567}}{{perSCC-H|McLachlin CJ}}{{atsL|24rr4|35|, 37}} and {{at-nc|24rr4|53}}<br>
{{CanLIIRP-C|Carter v Canada (Attorney General)|gg5z4|2015 SCC 5 (CanLII)|[2015] 1 SCR 331}}{{TheCourtSCC}}{{atL|gg5z4|97}}
</ref>
The desire to engage in incrementalism to allow for gradual change to impugned legislation.<ref>
{{CanLIIRP-C|Vriend v Alberta|1fqt5|1998 CanLII 816 (SCC)|[1998] 1 SCR 493}}{{perSCC|Cory and Iacobucci JJ}}{{atL|1fqt5|122}} ("... I took the position that the need for governmental incrementalism was an inappropriate justification for Charter violations.  I remain convinced that this approach is generally not suitable for that purpose, especially where, as here, the statute in issue is a comprehensive code of human rights provisions.  In my opinion, groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time.  If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words.")<br>
{{supra1|M v H}}{{atL|1fqm4|128}}
</ref>
There should rarely be deference when dealing with matters of criminal law given that "the government is the singular antagonist of the individual whose right has been infringed."<ref>
{{CanLIIRP-C|Irwin Toy Ltd. v Quebec (Attorney General)|1ft6g|1989 CanLII 87 (SCC)|[1989] 1 SCR 927}}{{perSCC|Dickson CJ and Lamer and Wilson JJ}} ("rather than mediating between different groups, the government is best characterized as the singular antagonist of the individual whose right has been infringed. ...  In such circumstances, and indeed whenever the government's purpose relates to maintaining the authority and impartiality of the judicial system, the courts can assess with some certainty whether the "least drastic means" for achieving the purpose have been chosen, especially given their accumulated experience in dealing with such questions")
</ref>
{{reflist|2}}
==Evidence==
Typical available evidence that is considered in a s. 1 hearing include:
* preamble of legislation<ref>
{{CanLIIRP|Lucas|1fqt3|1998 CanLII 815 (SCC)|[1998] 1 SCR 439}}{{perSCC|Cory J}}
</ref>
* legislative hansard<ref>
{{CanLIIRP|KRJ|gsm3w|2016 SCC 31 (CanLII)|[2016] 1 SCR 906}}{{perSCC|Karakatsanis J}}<br>
{{CanLIIRP|Morgentaler|1fs14|1993 CanLII 74 (SCC)|[1993] 3 SCR 463}}{{perSCC-H|Sopinka J}}<br>
{{CanLIIRPC|British Columbia Teachers’ Federation v Attorney General of British Columbia|21v0s|2008 BCSC 1699 (CanLII)|304 DLR (4th) 588}}{{perBCSC|Rice J}}{{atsL|21v0s|42| to 64}}<br>
</ref>
* Minister's speeches outside of the legislature<Ref>
{{CanLIIRP-C|Irwin Toy Ltd. v Quebec (Attorney General)|1ft6g|1989 CanLII 87 (SCC)|[1989] 1 SCR 927}}{{perSCC|Dickson CJ and Lamer and Wilson JJ}}
</ref>
* Reports, including Parliamentary committee reports, commission reports, or law reform reports;<Ref>
{{CanLIIRP|Keegstra|1fsr1|1990 CanLII 24 (SCC)|[1990] 3 SCR 697}}{{perSCC|Dickson CJ}}<br>
{{CanLIIRP-C|M v H|1fqm4|1999 CanLII 686 (SCC)|[1999] 2 SCR 3}}{{perSCC|Iacobucci J}} (6:1){{atL|1fqm4|78}}<br>
{{CanLIIRP-C|Harper v Canada (Attorney General)|1h2c9|2004 SCC 33 (CanLII)|[2004] 1 SCR 827}}{{perSCC|Bastarache J}}
</ref>
* Opinion polls<Ref>
{{CanLIIRP|Bryan|1qsvr|2007 SCC 12 (CanLII)|[2007] 1 SCR 527}}{{perSCC-H|Bastarache J}}
</ref>
* Expert testimony<ref>
{{ibid1|Bryan}}<br>
{{CanLIIRP-C|Newfoundland (Treasury Board) v NAPE|1j0tg|2004 SCC 66 (CanLII)|[2004] 3 SCR 381}}{{perSCC-H|Binnie J}}<br>
</ref>
{{reflist|2}}
==See Also==
* [https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html Charterpedia (Justica.ca)]

Version du 20 juin 2024 à 23:13

Ang

Fr

Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois January 2019. (Rev. # 2366)

General Principles

Section 1 of the Canadian Charter of Rights and Freedoms states:

Guarantee of Rights and Freedoms

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.

– CCRF

Note up: 1

This provision is also known as the "reasonable limits clause" or "limitations clause", as it legally allows the government to limit an individual's Charter rights. Wherever there is a violation of the legal rights (s. 7 to 12) of the Charter, s. 1 governs whether the violation is permissible and exempted from any remedy under s. 24 of the Charter.

Burden and Standard of Proof

Where a violation of a legal right has been found, the burden is upon the Crown to justify limiting the right under s. 1.[1] The standard of proof is on a balance of probabilities.[2]

"Demonstrably Justified"

The phrase "demonstrably justified" means that there must be a "cogent and persuasive."[3]

Generally, the Crown must demonstrate the justification using empirical evidence.

Where the science or social science justifying the limitation is inconclusive, the Crown may rely on "reason and logic."[4] In cases of minimal breaches, the absence of social science is of less importance.[5]

  1. ↑ R c Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, per Dickson CJ
  2. ↑ , ibid.
    R v Sharpe at para 102(citation complète en attente)
  3. ↑ , ibid. ("Where evidence is required in order to prove the constituent elements of a s. 1 inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit")
  4. ↑ Libman v Quebec (A.G.), 1997 CanLII 326 (SCC), [1997] 3 SCR 569, per curiam
    RJR-MacDonald Inc v Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199, par McLachlin J
    Thomson Newspapers Co. v Canada (A.G.), 1998 CanLII 829 (SCC), [1998] 1 SCR 877, par Bastarache J
    R c Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, par McLachlin CJ
    Harper v Canada (A.G.), 2004 SCC 33 (CanLII), [2004] 1 SCR 827, par Bastarache J, au para 77
    R c Bryan, 2007 SCC 12 (CanLII), [2007] 1 SCR 527, par Bastarache J, aux paras 16 to 19, 29
    Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 (CanLII), [2015] 1 SCR 3, par McLachlin CJ and LeBel J, aux paras 143 to 144
  5. ↑ e.g. B.C. Freedom of Information and Privacy Association v British Columbia (Attorney General), 2017 SCC 6 (CanLII), [2017] 1 SCR 93, par McLachlin CJ

Section 7 Violations

Overbroad and Grossly Disproportionate

Where legislation is found to be overbroad or grossly disproportionate it is generally not justifiable under s. 1 of the Charter.[1]

  1. ↑ R c Boutilier, 2016 BCCA 235 (CanLII), 336 CCC (3d) 293, par D Smith J, au para 84
    Canada (AG) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, par McLachlin CJ, au para 129
    Carter v Canada (AG), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, per curiam, au para 95

Prescribed by Law

The limitations on rights must be "prescribed by law". This refers to the requirement that the limitation on rights is the result of some conduct of a government or its agents following some accessible and intelligible law.

The requirement here is concerned with those limitations that are arbitrary and not supported by law.[1]

A law will be invalid where it is too vague as "where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances."[2]

Meaning of "Law"

"Law" in this context refers to both the common law as well as statutory law or regulations.[3]

The limitation can be created expressly by law or "by necessary implication from the terms of a statute or regulation or from its operating requirements."[4]

Law Includes Policy

Certain types of policy can fall into the meaning of "law". The policy must be found to have the following: [5]

  1. the government entity was authorized to enact the policy
  2. the policy is of "general application"
  3. the policy is "sufficiently precise and accessible"

The requirements for a policy are meant to distinguish between policies that are "legislative" in nature and those that are "administrative" in nature.[6] Those that are legislative are ones that are of "general application" and establish a "norm."[7] Those that are administrative are created for the purpose of "administrative efficiency". They are for internal use only and are often informal. They are sometimes simply used as interpretive aids rather than setting out rights and obligations.[8]

  1. ↑ R c Therens, 1985 CanLII 29 (SCC), [1985] 1 SCR 613, per Le Dain J (dissent), au para 60 ("The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary.") but affirmed in Orbanski
    R c Orbanski; R v Elias, 2005 SCC 37 (CanLII), [2005] 2 SCR 3, au para 36
  2. ↑ Irwin Toy Ltd v Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927, per Dickson C.J. and Lamer and Wilson JJ
  3. ↑ R c Shupe, 1987 CanLII 3171 (AB QB), 38 CCC (3d) 64, per Cooke J, au para 19
    Therens, supra, au para 60 ("The limit may also result from the application of a common law rule.") aff'd in Orbanski
  4. ↑ Therens, supra, au para 60 ("The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. ")
    Orbanski, supra, au para 36
  5. ↑ Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31 (CanLII), [2009] 2 SCR 295, au para 50 (For policy to be included in s.1, "it must be asked whether the government entity was authorized to enact the impugned policies and whether the policies are binding rules of general application. If so, the policies can be “law” for the purposes of s. 1. At the second stage of the enquiry, ... it must be determined whether the policies are sufficiently precise and accessible.")
  6. ↑ Greater Vancouver, supra, au para 64 ("Where a policy is not administrative in nature, it may be “law” provided that it meets certain requirements.") and, au para 65 ("Thus, where a government policy is authorized by statute and sets out a general norm or standard that is meant to be binding and is sufficiently accessible and precise, the policy is legislative in nature and constitutes a limit that is “prescribed by law”.")
  7. ↑ Greater Vancouver, supra, au para 64 ("In order to be legislative in nature, the policy must establish a norm or standard of general application that has been enacted by a government entity pursuant to a rule-making authority.")
  8. ↑ Greater Vancouver, supra, au para 63 ("Administrative rules relate to the implementation of laws contained in a statutory scheme and are created for the purpose of administrative efficiency. The key question is thus whether the policies are focussed on “indoor” management. In such a case, they are meant for internal use and are often informal in nature; ... . Such rules or policies act as interpretive aids in the application of a statute or regulation.")

Oakes Test

The test to determine if the purpose of the law is demonstrably justifiable in a free and democratic society is known as the "Oakes Test."[1]

The test is applied once the claimant has proven that one of the provisions of the Charter has been violated.

The onus is on the Crown to pass the Oakes test. A violation of a right can only be justified where the following elements are made out on a balance of probabilities:

  1. There must be a pressing and substantial objective
  2. The means must be proportional
    1. The means must be rationally connected to the objective
    2. There must be minimal impairment of rights
    3. There must be proportionality between the infringement and objective
  1. ↑ R c Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, per Dickson CJ

Pressing and Substantial Objective

The first branch of the Oakes test requires that the law have a "pressing and substantial objective".

A sufficiently "pressing and substantial" objective is one that is "consistent with some of the foundational principles on which our particular free and democratic society is based."[1] Or stated in another way, they cannot be "discordant" with "the principles integral to a free and democratic society."[2]

  1. ↑ Figueroa v Canada (Attorney General), 2003 SCC 37 (CanLII), [2003] 1 SCR 912, per Lebel J (concurring), au para 180
    Vriend v Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493, per Cory and Iacobucci JJ
  2. ↑ , ibid., au para 80, per Iacobucci J

Minimal Impairment

The impugned right must be restricted "as little as possible."[1] However, it is only necessary that the impairment be simply within a range of reasonable options. It does not need to be optimal.[2]

The purpose of this inquiry is to decide whether "there are less harmful means of achieving the legislative goal."[3] It ensures that the rights deprivation is "confined what is reasonably necessary to achieve" the legislation's objective.[4]

The main question at the impairment stage is "whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner."[5]

The burden is upon the government to show the absence of "less drastic means of achieving the objective in a real and substantial manner."[6]

In considering the efficiency of the objective, it is not necessary that the alternative would achieve the objective "to exactly the same extent or degree" as the impugned law.[7] The objective should need to be defined so precisely or exactly as to render all alternatives insufficient.[8]

The law must be "reasonably tailored" to the objective so as to impair no more than "reasonably necessary" in consideration of "the practical difficulties and conflicting tensions" arising from the law.[9]

It must be considered that any attempt to protect one right may intrude on another right. There can be no perfect balance between them.[10]

Evidence of Policy Evaluation

The government should be expected to present evidence show why the ultimate position was chosen.[11]

Showing that the government engaged in consultation with the affected parties will help establish that the government considered all the options when legislating.[12]

Sources for Guidance

The court may look at other countries as well as other provinces.[13] However, there must be consideration for the different social issues and needs for each province. [14]

The Court may consider international treaties signed by Canada.[15]

  1. ↑ R c Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, per Dickson CJ
  2. ↑ RJR-MacDonald Inc v Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199, par McLachlin J, au para 160
    R c Sharpe, 2001 SCC 1 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, au para 96 ("This Court has held that to establish justification it is not necessary to show that Parliament has adopted the least restrictive means of achieving its end. It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted.")
  3. ↑ , ibid., au para 102
  4. ↑ , ibid., au para 102 ("The analysis at this stage is meant to ensure that the deprivation of Charter rights is confined to what is reasonably necessary to achieve the state’s object.")
  5. ↑ Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII), [2009] 2 SCR 567, par McLachlin CJ, au para 55 ("The test at the minimum impairment stage is whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner.")
    Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, aux paras 102, 118
    R c KRJ, 2016 SCC 31 (CanLII), [2016] 1 SCR 906, au para 70
  6. ↑ Carter, supra, au para 103 ("The burden is on the government to show the absence of less drastic means of achieving the objective in a real and substantial manner" [quotes removed])
  7. ↑ , ibid., au para 55("...in considering whether the government’s objective could be achieved by other less drastic means, the court need not be satisfied that the alternative would satisfy the objective to exactly the same extent or degree as the impugned measure. In other words, the court should not accept an unrealistically exacting or precise formulation of the government’s objective which would effectively immunize the law from scrutiny at the minimal impairment stage.")
  8. ↑ , ibid.
  9. ↑ R c Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, par Sharpe CJ, au para 96 RJR-MacDonald, supra, au para 160 (" The law must be reasonably tailored to its objectives; it must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account")
    Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, per curiam, au para 102
    Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII), [2009] 2 SCR 567, per McLachlin CJ, au para 53 (law must be "reasonably tailored to the pressing and substantial goal put forward to justify the limit")
  10. ↑ R c Edwards Books and Art Ltd, 1986 CanLII 12 (SCC), [1986] 2 SCR 713, au para 183("Moreover, attempts to protect the rights of one group will also inevitably impose burdens on the rights of other groups. There is no perfect scenario in which the rights of all can be equally protected.")
    Sharpe, supra
  11. ↑ Thomson Newspapers Co. v Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 SCR 877, par Bastarache J, aux paras 118 to 119
    RJR MacDonald, supra, au para 160 ("...if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail")
    Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), [2007] 1 SCR 350, par McLachlin CJ, aux paras 69, 76, 86
  12. ↑ Health Services and Support - Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27 (CanLII), [2007] 2 SCR 391, per J, au para 157 (" Legislators are not bound to consult with affected parties before passing legislation. ...it may be useful to consider, in the course of the s. 1 justification analysis, whether the government considered other options or engaged consultation with the affected parties, in choosing to adopt its preferred approach. The Court has looked at pre-legislative considerations in the past in the context of minimal impairment. This is simply evidence going to whether other options, in a range of possible options, were explored.")
  13. ↑ Carter, supra, au para 103
    Canada (Attorney General) v JTI-Macdonald Corp., 2007 SCC 30 (CanLII), [2007] 2 SCR 610, par McLachlin CJ, au para 138
    Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), [2007] 1 SCR 350, par McLachlin CJ, aux paras 81 to 84
    Lavoie v Canada, 2002 SCC 23 (CanLII), [2002] 1 SCR 769, per Bastarache CJ, aux paras 66 to 67
  14. ↑ Quebec (Attorney General) v A, SCC 5 (CanLII) [2013 1 SCR 61], {{{4}}}, au para 449, per Deschamps J (dissenting in part) at para fvsc0 ("Having regard to the need to allow legislatures a margin of appreciation on difficult social issues and the need to be sensitive to the constitutional responsibility of each province to legislate for its population, the answer to this question is no.")
  15. ↑ JTI-Macdonald, supra, au para 10
    Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (CanLII), [2013] 1 SCR 467, au para 67, per Rothstein J, au para 67 ("The balancing of competing Charter rights should also take into account Canada’s international obligations with respect to international law treaty commitments: ... Those commitments reflect an international recognition that certain types of expression may be limited in furtherance of other fundamental values: ")

Rational Connection

To show a rational connection, the government must show that it is reasonable to believe that the limit "may"–but not necessarily–advance the goal.[1] Where the law does not in practice advance the goal, it may come into play on the third stage of analysis when balancing is considered.

The impugned law cannot be "arbitrary, unfair or based on irrational considerations."[2]

There must be a "rational connection" (or "causal link") "between the purpose of the law and the means adopted to effect this purpose."[3]

There is no requirement of certainty of scheme's effectiveness. It is only necessary that the limtiation "may further the goal, not that it will do so."[4]

This stage should not be "particularly onerous."[5]

SOIRA Orders

It was accepted by the court that parliament is permitted to infer that someone who is convicted of more than one sex offence is more likely to be of greater concern to the public risk, irrespective of whether multiple offences arise out of a single incident.[6]

  1. ↑ Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII), [2009] 2 SCR 567, per McLachlin CJ, au para 48
  2. ↑ R c Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, au p. 139
  3. ↑ R c Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, par MacLachlin J, au para 94
    Health Services and Support - Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27 (CanLII), [2007] 2 SCR 391, au para 148 (" the government must establish, on the balance of probabilities, that the means adopted in the Act are rationally connected to achieving its pressing and substantial objectives.") Trociuk v British Columbia (Attorney General), 2003 SCC 34 (CanLII), [2003] 1 SCR 835, au para 34("the rational connection requirement is satisfied where there is “a link or nexus based on and in accordance with reason, between the measures enacted and the legislative objective”.")
  4. ↑ Alberta v Hutterian Brethren, supra, au para 48
    see also Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 (CanLII), [2015] 1 SCR 3, par McLachlin C.J. and LeBel J, aux paras 143 to 144
  5. ↑ Health Services, supra, au para 148
    Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 (CanLII), [2000] 2 SCR 1120, au para 228
    Trociuk v British Columbia (Attorney General), supra, au para 34
    Canada (Attorney General) v JTI-Macdonald Corp, 2007 SCC 30 (CanLII), [2007] 2 SCR 610, par McLachlin CJ, aux paras 40 to 41
  6. ↑ R c Long, 2018 ONCA 282 (CanLII), 45 CR (7th) 98, par Strathy CJ, au para 131 ("Parliament was entitled to draw the inference that conviction of more than one sexual offence is logically probative of an offender’s enhanced propensity to commit further sexual offences and is linked to an elevated risk of re-offending.")

Proportional Balancing

The proportionality stage is where the court must "weigh the impact of the law on protected rights against the beneficial effects of the law" on the public good.[1]

Previous stages focus on the purpose of the law. This stage is the only one to take into account for the "severity of the deleterious effects of a measure on individuals or groups."[2]

The other steps do not consider the "relationship between the measures and the Charter right". They only consider the "relationship between the ends of the legislation and the means employed."[3]

It considers the impact of the law. It includes consideration of the collective good to be achieved.[4]

The balance between positive and negative effects of the law must be "measured by the values underlying the Charter."[5]

The salutary effects must be those that "actually result" from the implementation of the law.[6]

This final stage is where the "conceptual heavy lifting and balancing" takes place.[7]

This is where the court determines "on a normative basis whether a rights infringement is justified in a free and democratic society."[8]

In assessment, the court must make value judgments. These judgements should be explicit to ensure transparency.[9]

There must be "appropriate deference" to the legislators "choice of means" and its full legislative objective.[10]

It is in the rare case where the law satisfies all previous stages but fails on the balancing.[11]

  1. ↑ R c KRJ, 2016 SCC 31 (CanLII), [2016] 1 SCR 906, per Karakatsanis J, au para 77 (" At this final stage of the proportionality analysis, the Court must “weig[h] the impact of the law on protected rights against the beneficial effect of the law in terms of the greater public good”")
    Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, per curiam, au para 122 ("This stage of the Oakes analysis weighs the impact of the law on protected rights against the beneficial effect of the law in terms of the greater public good. Given our conclusion that the law is not minimally impairing, it is not necessary to go on to this step.")
  2. ↑ Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII), [2009] 2 SCR 567, par McLachlin CJ, au para 76
  3. ↑ Thomson Newspapers Co. v Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 SCR 877, par Bastarache J, au para 125
  4. ↑ Canada (Attorney General) v JTI-Macdonald Corp, 2007 SCC 30 (CanLII), [2007] 2 SCR 610, par McLachlin CJ, au para 45 ("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?")
  5. ↑ Thomson Newspapers, supra, au para 125 ("The third stage of the proportionality analysis provides an opportunity to assess, in light of the practical and contextual details which are elucidated in the first and second stages, whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by the values underlying the Charter. ")
  6. ↑ Dagenais v Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 SCR 835, per Lamer CJ, au p. 887 ("...I believe that the third step of the second branch of the Oakes test requires both that the underlying objective of a measure and the salutary effects that actually result from its implementation be proportional to the deleterious effects the measure has on fundamental rights and freedoms.")
  7. ↑ KRJ, supra, aux paras 78 to 79 ("most of the heavy conceptual lifting and balancing ought to be done at the final step ... It is only at this final stage that courts can transcend the law’s purpose and engage in a robust examination of the law’s impact on Canada’s free and democratic society ")
  8. ↑ KRJ, supra, au para 79
  9. ↑ KRJ, supra, au para 79
  10. ↑ KRJ, supra, au para 79 ("Further, as mentioned, proceeding to this final stage permits appropriate deference to Parliament’s choice of means, as well as its full legislative objective.")
  11. ↑ e.g. KRJ, supra

Deference to Social Context

The assessment is highly sensitive to the factual and cultural context of the law.[1]

There will be greater defence where there the legislators have superior institutional competence.[2] This means that complex social problems or a complex regulatory response may be a reason to be deferential to the legislators.[3]

The desire to engage in incrementalism to allow for gradual change to impugned legislation.[4]

There should rarely be deference when dealing with matters of criminal law given that "the government is the singular antagonist of the individual whose right has been infringed."[5]

  1. ↑ Thomson Newspapers Co. v Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 SCR 877, par Bastarache J, au para 87 (" The analysis under s. 1 of the Charter must be undertaken with a close attention to context. ... This is inevitable as the test devised in R v Oakes, [citation omitted], requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses.")
    RJR-MacDonald Inc v Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199, par McLachlin J, au para 63 ("This Court has on many occasions affirmed that the Oakes requirements must be applied flexibly, having regard to the specific factual and social context of each case.")
  2. ↑ M v H, 1999 CanLII 686 (SCC), [1999] 2 SCR 3, per Iacobucci J (6:1), au para 78 ("As a general matter, the role of the legislature demands deference from the courts to those types of policy decisions that the legislature is best placed to make.")
  3. ↑ Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (CanLII), [2013] 1 SCR 467, per Rothstein J, au para 78
    Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII), [2009] 2 SCR 567, par McLachlin CJ, aux paras 35, 37 and at para 24rr4
    Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, per curiam, au para 97
  4. ↑ Vriend v Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493, per Cory and Iacobucci JJ, au para 122 ("... I took the position that the need for governmental incrementalism was an inappropriate justification for Charter violations. I remain convinced that this approach is generally not suitable for that purpose, especially where, as here, the statute in issue is a comprehensive code of human rights provisions. In my opinion, groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time. If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words.")
    M v H, supra, au para 128
  5. ↑ Irwin Toy Ltd. v Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927, per Dickson CJ and Lamer and Wilson JJ ("rather than mediating between different groups, the government is best characterized as the singular antagonist of the individual whose right has been infringed. ... In such circumstances, and indeed whenever the government's purpose relates to maintaining the authority and impartiality of the judicial system, the courts can assess with some certainty whether the "least drastic means" for achieving the purpose have been chosen, especially given their accumulated experience in dealing with such questions")

Evidence

Typical available evidence that is considered in a s. 1 hearing include:

  • preamble of legislation[1]
  • legislative hansard[2]
  • Minister's speeches outside of the legislature[3]
  • Reports, including Parliamentary committee reports, commission reports, or law reform reports;[4]
  • Opinion polls[5]
  • Expert testimony[6]
  1. ↑ R c Lucas, 1998 CanLII 815 (SCC), [1998] 1 SCR 439, per Cory J
  2. ↑ R c KRJ, 2016 SCC 31 (CanLII), [2016] 1 SCR 906, per Karakatsanis J
    R c Morgentaler, 1993 CanLII 74 (SCC), [1993] 3 SCR 463, par Sopinka J
    British Columbia Teachers’ Federation v Attorney General of British Columbia, 2008 BCSC 1699 (CanLII), 304 DLR (4th) 588, par Rice J, aux paras 42 to 64
  3. ↑ Irwin Toy Ltd. v Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927, per Dickson CJ and Lamer and Wilson JJ
  4. ↑ R c Keegstra, 1990 CanLII 24 (SCC), [1990] 3 SCR 697, per Dickson CJ
    M v H, 1999 CanLII 686 (SCC), [1999] 2 SCR 3, per Iacobucci J (6:1), au para 78
    Harper v Canada (Attorney General), 2004 SCC 33 (CanLII), [2004] 1 SCR 827, per Bastarache J
  5. ↑ R c Bryan, 2007 SCC 12 (CanLII), [2007] 1 SCR 527, par Bastarache J
  6. ↑ , ibid.
    Newfoundland (Treasury Board) v NAPE, 2004 SCC 66 (CanLII), [2004] 3 SCR 381, par Binnie J

See Also

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