What is Section 1 of the Charter?

Section 1 of the Canadian Charter of Rights and Freedoms is the limitation clause: it '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 what allows hate-speech laws, election spending limits, public-health measures, and other government restrictions to coexist with constitutionally protected rights. Without section 1, every Charter right would be absolute and many ordinary laws would be constitutionally vulnerable.

Courts evaluate section 1 limits under the Oakes test, named after the 1986 Supreme Court decision in which Chief Justice Brian Dickson set it out. A law that limits a Charter right must clear two hurdles. First, the law must pursue an objective that is pressing and substantial enough to warrant overriding a constitutional right. Second, the chosen means must be proportionate: rationally connected to the objective, no more impairing of the right than necessary, and proportionate in their good and bad effects. Failure on any prong defeats the section 1 defence.

Major decisions have applied this analysis to a wide range of laws. In R. v. Keegstra (1990) the court accepted hate-propaganda provisions as a justified limit on freedom of expression. Harper v. Canada (Attorney General) (2004) preserved third-party election-spending caps. Canada (Attorney General) v. JTI-Macdonald Corp. (2007) sustained tobacco-advertising restrictions. Mounted Police Association of Ontario v. Canada (2015) extended associational rights to RCMP members but left room for limits. Federation of Law Societies v. Canada (2015) went the other way, striking down anti-money-laundering reporting rules imposed on lawyers as an unjustified incursion on solicitor-client privilege.

Section 1 differs from section 33 (the notwithstanding clause) in three important ways. Section 1 applies automatically to all Charter limits and requires the government to justify the limit in court; section 33 must be expressly invoked and operates regardless of judicial review. Section 1 applies to all Charter rights including section 15 equality and section 6 mobility; section 33 applies only to sections 2 and 7 to 15. Section 1 is permanent unless the law is changed; a section 33 invocation expires after five years unless renewed.