The Section 1 Charter Test :
no right or law can be absolute
When you think about it, no right or law can be absolute. Your family
constitution may give you the right to select the TV program every Wednesday
evening, but if there is an unexpected news story that affects the family,
you may find your right will be limited by your parents.
When you are balancing the needs of an entire country, that goes double.
I think Mr. Spock said it best. "The needs of the many may outweigh
the needs of the few, or the one." Logical. Flawlessly logical.
Section 1 is the way the balance is struck. It guarantees the rights
and freedoms in the Charter, subject to "reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society."
That means that in a democracy, there has to be some give and take in
order to ensure that everyone's interests are balanced.
Singlemindedly protecting one right at the expense of others doesn't
often make sense. Section 1 allows governments to pass laws that may infringe
a Charter right, but in a way and for a reason that works for society
as a whole.
To pass the Section 1 test, a law has to:
- Have an objective important enough to justify overriding a
constitutionally protected right or freedom.
Translation: If you are going to infringe the Charter, it better be
for a darn good reason. Take a law aimed at reducing traffic deaths.
That is an objective that is important. On the other hand, a law designed
to ensure that office workers colour co-ordinate their wardrobes every
day is not.
- Use means that are proportional to the ends it is trying
to achieve. That means a law has to:
- Have a rational connection to the objective.
Translation: The requirements in the law must actually be connected
to the law's stated goal. A law making drivers pass a speed skating
test doesn't have a sensible connection to the objective of reducing
traffic deaths.
- Should impair the right or freedom as little as possible.
Translation: The law can't be excessive in the way it limits a right.
Banning people from driving in order to reduce car accidents fatalities
is very effective, but goes way too far.
- Should not have harmful effects that outweigh the benefits.
Translation: A law that does more harm than good will not survive Section
1. Imprisoning all poor drivers so that they cannot cause accidents
would probably fit in this category.
When it comes to Charter interpretation,
Section 1 is Stage 2. The first step a court takes is to determine whether
a Charter right actually has been infringed. If it has, then, and only
then, will the Court turn to Section 1.
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