Section 1 of the Charter: “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”
Section 1 is only used once an infringement of a freedom or right is proven. The government is then given the opportunity to justify the infringement. The overarching section 1 test is whether the infringement is a reasonable limit on the right or freedom prescribed by law and justified in a free and democratic society. The framework used by the courts to determine this is outlined below. If the government fails at any of these steps, the law is declared unconstitutional and the courts will determine an appropriate remedy. If the government succeeds in the section 1 analysis, the infringement of the right or freedom is justified and the law is left intact.
1. Is the limit on the right or freedom prescribed by law?
a. limitation on a right or freedom must be established by law in a way that is clear and intelligible.
2. Is the limit on the right justified in a free and democratic society? (The “Oakes Test”)
a. Pressing and substantial objective
The objective the government hopes to achieve through the law at issue must be important enough to justify limiting the right or freedom.
b. Means are reasonable and justified
i. Rational connection
There must be a rational connection between the government’s objective and the means by which the government is attempting to reach their objective (or in other words, the law at issue).
ii. Minimal impairment
The way the government chose to reach its objective (the law in question) must be part of a range of reasonable options that infringes the right or freedom as little as possible.
iii. Proportionality between deleterious and salutary effects
The benefits of the law must be greater than the costs associated with limiting the right or freedom.