The Charter of Rights and Freedoms is the one of the most recognizable parts of Canada’s constitutional democracy. Signed in 1982 under the Trudeau administration (and following extensive negotiations), the Charter of Rights and Freedoms provides legal protection for citizens’ rights to free speech, religion, and freedom from discrimination by limiting government power. And although people living in Canada are largely able to enjoy the rights and freedoms guaranteed by the Charter, there are clauses that also allow some of those rights and freedoms to be violated in certain circumstances . In particular, there are two sections of the Charter–section 1 (the reasonable limits clause) and section 33 (the notwithstanding clause) that create space for governments to violate some of the terms of the Charter–violations which are then validated (or not) by the courts.
Section 1: The Reasonable Limits Clause
“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.”s.1 of the Canadian Charter of Rights and Freedoms
When a government in Canada makes a law that violates the terms of the Charter, a court might say that doing so is legitimate, so long as the violation occurs in ways that are a “reasonable limit” that can be “demonstrably justified in a free and democratic society,” or in other words, saved under s.1. The Supreme Court of Canada developed a test in the landmark case of R. v. Oakes to assess what constitutes a reasonable limit, that involves a two-part to determine whether legislation violating the Charter can be justified under s.1.
In R. v. Oakes, the Supreme Court developed a two-part formula (the with three justificatory criteria to weigh the balance of power between the law in question and individuals’ freedom and rights. The first part of the test asks two foundational questions to establish the connection of the case to the use of the Charter effectively determining whether the limit on freedom is reasonable: 1) Is the legislative goal pressing and substantial and; 2) is there proportionality between the objective and the means used to achieve it?
After the first part of the test is established, the Court must engage in the second part of the Oakes test, that is, identifying whether that reasonable limit can be demonstrably justified in three ways. First, the aim of the law or policy under scrutiny must be rationally connected to the limit on the Charter right. Second, the limitation must restrict the Charter right as little as possible (i.e., minimal impairment). Third, there should be an overall balance or proportionality between the benefits of the limit and potential harmful effects.
One early and important application of the reasonable limits clause occurred in the case of R.v Keegstra. In this case, a teacher had handed out anti-Semitic posters at an Alberta high school, and was arrested and charged for with promoting hatred against an identifiable group. In court, Keegstra attempted to claim that his actions were justifiable under the freedom of expression provisions of the Charter. The Supreme Court found that although Keegstra was right–that the limitations on the promotion of hatred was a violation of the freedom of expression provisions of the Charter, after applying the Oakes test, the Court found that the restriction on Keegstra’s freedom of expression was reasonably justified under s.1 of the Charter.
In the context of a free and democratic society, the reasonable limits clause (s.1) serves as a safeguard for protecting human rights and limiting freedoms by balancing government power with individual liberty.
Section 33: The Notwithstanding Clause
“Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”s.33 of the Canadian Charter of Rights and Freedoms
Section 33 of the Charter, the “notwithstanding clause” states that both the federal Parliament or provincial governments can enact legislation that violates some of the rights and freedoms of the Charter in certain situations, particularly where governments disagree with potential (or actual) judicial decisions. When a government invokes the notwithstanding clause, the legislation in question (and the use of the notwithstanding clause) must be reviewed every five years. The notwithstanding clause can only be applied to legislation that goes against the fundamental freedoms in s. 2, or the rights outlined in s. 7-15. Other sections, including those addressing democratic rights, mobility rights, language rights, minority language education rights, and the guaranteed equality of the sexes cannot be violated using the notwithstanding clause.
At the time of writing (March 2021), s.33 has only been used seventeen times, and only by provincial governments. Much of the use of the notwithstanding clause has occurred in Quebec, where s.33 has historically been applied to legislation (including Bill 101) intended to protect and preserve the French language as the dominant language within Quebec. The more recent use of the notwithstanding clause to ensure that Bill 21 would not be overturned by the Supreme Court despite violating the Charter, has resulted in legal scholars questioning the extent to which s.33 violates fundamental freedoms under s. 2, the security of the person provisions under s.7, the equality provisions under s.15, as well as the gender equality provisions under s.28.
The power of s.33 is that it allows Parliament or provincial governments to enact legislation that does not comply with rights and freedoms guaranteed by the Charter, and its effect is that s.33 in some ways strengthens the division of powers under sections 91-92 of the Constitution Act 1867, as it allows provinces to make legislative decisions within their own jurisdictions without challenge from the federal government.
- Explainer on the Oakes test from the Centre for Constitutional Studies
- The Canadian Encyclopedia article on the notwithstanding clause
- Video from CBC Saskatchewan explaining the notwithstanding clause
Contributors: Ashnoor Shaikh, Lily McDonald, Sanghun Kai Han, Aidan Forsythe