“Limiting Rights in a Free and Democratic Society: Reimagining Section 1 of the Charter”
A Symposium Report
By Mike Jehu, J.D. Candidate, Osgoode Hall Law School*
This year marked Christian Legal Fellowship’s fifth Annual Symposium on Religion, Law and Human Rights (“Symposium”), held at the Peter A. Allard School of Law in British Columbia on May 3, 2022. Each year, academics, jurists, lawyers, and law students present cutting-edge research on legal issues with pressing societal implications and on under-examined constitutional matters, especially under the Canadian Charter of Rights and Freedoms.[1]
The program seeks to support legal scholarship and contribute to path-making developments in academic discourse by allowing presenters to develop their papers following feedback, questions, and rich discussion, culminating with an annual publication of the collected works. This year’s collection will be published by LexisNexis Canada in a 2023 special edition of the Supreme Court Law Review.
This year’s Symposium was unique in that it coincided with the 40th anniversary of the Charter. The theme was “Reimagining Section 1 of the Charter.” Section 1 provides: “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.” Commemorating four decades of the Charter with a deep dive into section 1 was apropos given its pre-eminence. In the words of Chief Justice Dickson in Oakes,[2] the principles of a “free and democratic society” are the “genesis” of Charter rights and “the ultimate standard” against which limits on any such rights are held.
The Symposium was chaired by Professor Brian Bird of the Peter A. Allard School of Law and Derek Ross, Executive Director of Christian Legal Fellowship. Together, they introduced the Symposium with the challenge that certain aspects of section 1 remain under-examined. The program chairs underscored the power of the “limitations clause”, as it is widely understood, to legitimately curtail any Charter right or freedom. However, they queried whether there has been too much focus on the limiting function of section 1 and not enough on its activating function in guaranteeing rights. They also questioned whether Charter jurisprudence has sufficiently articulated the concept of a “free and democratic society” since Oakes, and whether Oakes and Doré[3] overemphasize proportionality at the expense of other relevant considerations. These questions primed participants to attend to section 1’s rich potential to help fulfill the promises set out in the Charter.
Pluralism in a Free and Democratic Society
The Honourable Justice Peter Lauwers of the Ontario Court of Appeal delivered the opening address, titled “Pluralism in a Free and Democratic Society”. He argued that a free and democratic society should pursue a policy of maximum feasible accommodation, limited only by non-derogable core requirements of individual security and civic unity. Essential to his proposal was the notion of “anti-fragile tolerance” as a necessary civic virtue. However, Justice Lauwers described the unsatisfactory state of aspects of Charter jurisprudence that currently reflects, in some respects, a convergent mindset, which aims at rational consensus and perhaps a feeble notion of tolerance through state-imposed orthodoxy. Justice Lauwers instead endorsed a pluralist mindset, which holds that moral diversity is an inherent feature of life that must be accommodated, and tendered pluralist accommodation as a principle that could be incorporated into the section 1 proportionality analysis. Justice Lauwers concluded with the thought-provoking question of whether we can demand more than tolerance in a free and democratic society?
LIMITING FREEDOM AND EQUALITY - WHAT’S “REASONABLE?”?
Professor Jamie Cameron began the first panel discussion, “Limiting Freedom and Equality – What’s ‘Reasonable’?”, with the observation that most of the analyses of freedom of expression (guaranteed in section 2(b) of the Charter) occur under section 1. She proposed a more robust analysis that would raise the standard of breach under section 2(b) and inform a more evidence-based evaluation under section 1, ultimately strengthening the right.
Professor Hoi Kong critiqued the Supreme Court of Canada’s (SCC) decision in Fraser.[4] Since the SCC eliminated a claimant’s burden to demonstrate under section 15(1) that a distinction is arbitrary – meaning the burden now rests solely on the government to demonstrate that distinctions are not arbitrary under section 1 – Professor Kong opined that the state may be obligated to ameliorate disparities that exist under but are not necessarily influenced by a law, potentially conflating sections 15(1) and 15(2).
Rounding out the discussion, Professor Dwight Newman submitted that section 1’s litigation cost and evidentiary record burdens could be reduced by employing section 1 maxims; for example, a law or policy will almost always fail when its very purpose is to limit rights or if it treats rights as equivalent to non-analogous, non-rights interests. Drawing from section 35 jurisprudence, Professor Newman also suggested consultation as a “best practice” in some instances where the government has actual or constructive knowledge of potential rights-infringing action.
(RE)Conceptualizing limits on rights
The theme of the second panel discussion was “(Re)Conceptualizing Limits on Rights”. Professor Grégoire Webber criticized Oakes and subsequent jurisprudence for distorting the word “limits” in section 1 to mean “override”, “impair”, and “violation”. He argued that limits define “boundaries” without which there could be no right, and which must be informed by the underlying values and principles of a free and democratic society.[5]
Professor Lorraine Weinrib took a different tack in suggesting that the Charter is remarkably normative and imposes duties on the state to protect and respect the dignity of individuals. She noted most rights-affording nations in the world also have limitations clauses. She praised the final wording of section 1 as superior to provincially-supported alternatives that might have afforded greater deference to rights-limiting government action.[6]
Reflections on 1982
The Honourable Ian Binnie, former Justice of the Supreme Court of Canada, delivered the keynote address after the noon hour, “Reflections on 1982”.
Charged with all common law litigation for and against the Crown as Associate Deputy Minister of Justice Canada in 1982, Justice Binnie recounted how many government litigators believed the Charter would have minimal impact outside of the criminal law. Unanticipated holdings from the SCC ensued, however, including the justiciability of political questions in Operation Dismantle[7] and the Oakes decision that ascribed broad scope to section 1. Canada's constitutional moment of 1982 altered the nature of Parliamentary sovereignty. Yet the Court compromised along the way, for example, by contributing to Dialogue Theory and increasingly deferring to the government as was the case for bail legislation in R v. Morales.[8] Justice Binnie concluded that the Charter was a “stupendous success” from a popular support standpoint, though much work remains in adding content to and strengthening protections afforded by certain rights.
REimagining the judicial approach to section 1
For the third panel, “Reimagining the Judicial Approach to Section 1”, Carmelle Dieleman and Mark Mancini identified pitfalls in administrative law rights limitations, and proposed improvements to address them. Dieleman argued that the simplified proportionality analysis in Doré skips analytic steps and therefore reduces rather than enhances outcome flexibility. Under the Doré framework, administrative decisions are presumed to be rationally connected to pressing and substantial legislative objectives, minimal impairment receives little attention, and reasonable accommodation is almost absent from consideration. Problematically, results can be constrained to dichotomous “approve/not approve” decisions as in the Trinity Western University case.[9] Bolstering the analysis by drawing on section 1 principles could augment outcome options.
Similarly, Mancini argued that Vavilov[10] provides a better framework than Doré insofar as it contains the conceptual tools to import some important section 1 considerations into administrative law. In particular, Vavilov’s requirement that constitutional questions be reviewed on a “correctness” standard, and that administrative decision-makers be held to “a culture of justification”, can help uphold section 1’s “guarantee” of rights and freedoms, subject only to limits that are “demonstrably justified”. Mancini defended an expanded correctness review as manageable since the presumptive standard of review is reasonableness, and, regardless, that is the price of legislative delegations of power to adjudicate Charter rights.
EXPLORING The relationship between section 1 and section 7
Panel 4 explored the “Relationship between Section 1 and Section 7”, with Professor Mary Shariff focusing on medical assistance in dying (MAiD) and Professor Debra Haak focusing on Canada’s prostitution laws.[11] Professor Shariff described the Carter[12] decision where the SCC struck down a criminal law, aimed at protecting vulnerable persons from being “induced” to seek MAiD, as overbroad for prohibiting competent adults from “seeking” MAiD. However, as Professor Shariff noted, the public interest factors of “seeking” and “inducing” were omitted from the wording of the Court’s final declaration of invalidity. In focusing on an individual’s right to MAiD in certain circumstances, no consideration was given to alternatives for medical assistance in living.
According to Professor Haak, the SCC in Bedford[13] created an expanded role for section 1 in section 7 cases by acknowledging their analytical distinctions. In that case, Chief Justice McLachlin pronounced that the effects of breaching an individual’s section 7 right to life, liberty and security of the person may not be grossly disproportionate to a law’s purpose. This differs from the section 1 question of whether the effect of a law is proportionate to its pressing and substantial goal in furthering the public interest. Professor Haak argued that laws which impinge on an individual’s interests in breach of section 7 may now be balanced against the public interest under section 1. As it stands, section 1 is rarely determinative in a case where section 7 is invoked, as it is indeed difficult to imagine how the state can justify a deprivation of life, liberty or security of the person in a manner that violates principles of fundamental justice. For that reason, Professor Haak’s interpretation of the increased presence and role in section 7 cases of public policy factors that animate analyses under section 1 engenders optimism for potential nuancing and balancing in future cases.
the free and democratic society
The final panel of the day addressed theoretical and practical considerations of “The Free and Democratic Society”, referenced in the text of section 1. From a theoretical perspective, Benjamin Woodfinden argued that “freedom” and “democracy” are separate concepts that must be considered together. Interestingly, he advanced the idea that defining the content, scope, and limits of these notions requires epistemological pluralism, involving material participation by rights-bearers and the legislature. Woodfinden opined this would be a better solution than the current resort to open-ended interpretations of section 1.
From a practical standpoint, Professor Paul Paton asserted that an independent Bar is a hallmark of a free and democratic society, which can only be sustained if the legal profession generally acts in the public interest. He described three recent reports from Canada, the United Kingdom, and the United States that criticize various law societies for essentially being echo chambers that espouse beliefs shared by few others. In other words, the Bar may be viewed as acting in self-interest, attracting calls for more legislative oversight. However, Professor Paton concluded with the exhortation that legal professionals are well-positioned to make a positive impact, on individual and societal levels, and to educate the public on an independent Bar’s essential role in upholding a free and democratic society.
PARTING REFLECTIONS
The Symposium’s discussions were enriched by insightful remarks from a number of panel moderators and commenters, including Professor Janine Benedet, Kristopher Kinsinger, Professor Victor Muñiz-Fraticelli, Professor Kerri Froc, Professor Blair Major, Jonathan Maryniuk, and Professor Geoffrey Sigalet and as well as many thoughtful and probing questions from the audience. Their contributions will assist in calibrating the final products for publication in the Supreme Court Law Review, which will provide students, scholars, and practitioners with valuable resources in advancing discourse and litigation on the definition and proper scope of Charter rights in service of the public interest.
Though the Symposium has concluded for another year, the cutting-edge ideas generated through it live on. The importance of this enterprise cannot be understated. While 40 years of jurisprudence has produced much good fruit, as Justice Binnie implored, much work remains to be done. As the program Chairs articulated, at stake is the respect for the inherent dignity of all persons through civil liberties guaranteed by section 1 of the Charter. Encouragingly, the Symposium aspires to make a meaningful impact on the lives of individuals in our free and democratic society over the next 40 years and beyond.
*Mike Jehu is a 3L student and co-President of the CLF chapter at Osgoode Hall Law School. He completed a BA and MA in Criminology from the University of Ontario Institute of Technology. He serves in the Canadian Armed Forces as an untrained Legal Officer with the Office of the Judge Advocate General. Mike and his wife, Sujin, are devoted parents to their three children.
**Photo credits: Techno Monkey Media
[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[2] R v Oakes, [1986] 1 SCR 103 at para 64 [Oakes].
[3] Doré v Barreau du Québec, 2012 SCC 12 [Doré].
[4] Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser].
[5] The same argument was advanced by Côté and Brown JJ’s dissent in Frank v Canada (Attorney General), 2019 SCC 1 at para 122.
[6] Professor Weinrib indicated that provinces endorsed a version of section 1 that read, “rights would be subject to reasonable limits as are generally accepted in a free and democratic society with a Parliamentary system of government.”
[7] Operation Dismantle v The Queen, [1985] 1 SCR 441.
[8] R v Morales, [1992] 3 SCR 711.
[9] Trinity Western University v Law Society of Upper Canada, 2018 SCC 33; Law Society of British Columbia v Trinity Western University, 2018 SCC 32.
[10] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
[11] Protection of Communities and Exploited Persons Act, SC 2014, c 25.
[12] Carter v Canada (Attorney General), 2015 SCC 5.
[13] Canada (Attorney General) v Bedford, 2013 SCC 72.
This program was supported by funding from the Social Sciences and Humanities Research Council.
