Resolving Infringements of the Charter

Rights are absolute? No, rights are fundamental, but not absolute. Limits can be defined by the COURTS (not Legislative Branch, except when using Notwithstanding Clause)

Limits to Charter Rights Limits can be prescribed when it is found to be: “REASONABLE” “DEMONSTRABLY JUSTIFIED” “PRESCRIBED BY LAW”

“REASONABLE” In order to be considered reasonable, the courts must decide that: The law must be designed to fufill an important governmental objective Intrusion on protected rights is minimal and proportionate to the seriousness of the objective

“DEMONSTRABLY JUSTIFIED” To be justified, a limit must be: Defensible based on the values shared by the people in free and democratic society in Canada Must apply to both the objective (i.e. – goal) of the limit and the means (i.e. – the way it is to be followed) of the limit

“PRESCRIBED BY LAW” Translation – any limit imposed by the courts must be made into a SPECIFIC law This way, the limit is not vague or too broad The law must show how to conform to the limit (what’s acceptable, what’s unacceptable)

Remedies Under the Charter Section 52 of the Charter allows a court to determine whether an existing law, when found to violate the Charter needs to be: STRUCK DOWN – removed from collected statutes and no longer enforced READ DOWN – modified to conform to the Charter It is up to the Parliament to do this work