“It was argued that rights could be safeguarded in an absolute fashion, but section 1 of the Charter reads, “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.” No prudent consumer would buy a refrigerator with a “guarantee” subject to such imprecise qualifications. The Charter would have been more honestly and accurately entitled “A Constitutional Enactment for the Better Protection of Certain Rights and Freedoms in Canada.” The problem is not, after all, the “guaranteeing” of rights, but rather the procedures by which government actors are permitted to define, rank, modify and override certain claims of individuals and groups.”
Smiley, Donald. “A Dangerous Deed: The Constitution Act, 1982” in Banting, Keith and Richard Simeon eds. And No One Cheered: Federalism, Democracy & The Constitution Act. (Methuen, Toronto). 1983. p.91 (hardcover)
I have been involved in two Charter cases in the last two years. I find the application of section 1 of the Charter one of the more of the more important and interesting balancing provisions of the Charter.
Equating the necessity of the balancing rights and the interests of society, to consumer buying a refrigerator seems disingenuous for someone seriously writing on federalism, democracy and the Constitution.
Canada’s constitution is being trampled by populists
The “notwithstanding clause” lets politicians nullify citizens’ rights. It needs to go
Canada’s bill of rights was adopted in 1982 under the government of Mr Trudeau’s father, Pierre, as part of the “patriation” of Canada’s constitution from Britain, the final step in claiming its independence. Fearing that a written charter would empower judges at their expense, provincial premiers demanded Section 33 as a way of preserving politicians’ autonomy. Constitutional scholars see it as a way of reconciling the principle of parliamentary sovereignty, inherited from Britain, with the introduction of a written charter.
https://www.economist.com/the-americas/2022/12/08/the-ticking-bomb-under-canadas-constitution
Brian Mulroney, prime minister from 1984 to 1993, said that Section 33 meant that the charter was “not worth the paper it is written on”. No other country has such a constitutional get-out clause in Canada’s expansive form.
The Canadian Charter of Rights and Freedoms is notable in that it takes away before it gives; before
enumerating specific rights and freedoms — including ‘fundamental freedoms’, democratic rights, mobility
rights, legal rights, equality rights, and language rights — it lays out the proviso that it guarantees them
“subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society”. Section 1 of the Charter immediately introduces the courts into the process of deciding
on the limits pertaining to rights, both further entrenching the established rule of the courts as evaluators
of laws and extending that obligation by making the role so plain.
https://www.sindark.com/phd/Ilnyckyj-ChartRev-0-7.pdf