When Canadian politicians drafted the Charter of Rights and Freedoms in 1982, they included a “reasonable limits” clause, the likes of which does not exist under the American constitution. Section 1 of the Charter essentially acts as an “out” for the courts, allowing them to declare that a piece of legislation infringes upon a Charter-protected right, but that infringement is “reasonable” in a free and democratic society.
The text of Section 1 states that “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.” The meaning of this phrase was determined in the case of R. v. Oakes, where the Supreme Court of Canada articulated the test for what constitutes a reasonable limit that a free and democratic society can tolerate.
The court ruled that in order to limit a Charter right under Section 1, the government must demonstrate that they have a “valid objective” in mind, and that the law in question is carefully designed to achieve the objective in question. In addition, a reasonable limit on a Charter right should infringe upon that right “as little as possible.” Finally, the government must demonstrate that the benefits of the legislation are sufficient or proportional to the ramifications for individuals whose Charter rights have been infringed.
This three-part process, known as the “Oakes test” has often been used to impose supposedly “reasonable” limits on freedom of expression which do not exist in the United States. Hate speech laws, for example, have been declared a reasonable limit on freedom of expression, as have laws against pornography and advertising aimed at young children.
Civil Forfeiture and the Standard of Proof
Unlike criminal proceedings, where an accused person must be presumed innocent until proven guilty and only punished once their guilt has been proven beyond a reasonable doubt, civil forfeiture proceedings operate on the balance of probabilities, meaning that the state must merely demonstrate that an individual has probably done something illegal in order to obtain forfeiture of their property.
Democratic Rights: A Broad Charter Guarantee
Democratic Rights, and specifically the right to vote in provincial and federal elections, enjoy broad constitutional protection in Canada, pursuant to Section 3 of the Charter of Rights and Freedoms. This section states that “Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
The Right to Counsel in Canada
Section 10(b) of the Canadian Charter of Rights and Freedoms preserves the right of a detained individual to contact counsel immediately upon arrest or detention, and simultaneously imposes a duty upon police to immediately inform individuals that they have this right.
