COVID-19 restrictions are a reminder that Charter rights have limits

January 28th, 2021 by Michael Hackl

Medical face mask. Image credit: Mark König/Unsplash

While the passage of the Charter of Rights and Freedoms in 1982 heralded a new age in the protection of individual rights in Canada, the rights protected by the Charter are not absolute. One famous expression about the limits of individual rights originated in an American court case; you may be familiar with the saying that the right to freedom of speech would not protect someone from falsely shouting “fire!” in a crowded theater. My favourite saying about limits on individual rights is “my right to swing my arm ends where your nose begins.”

With measures that have been implemented to deal with the COVID-19 pandemic, some people feel that their individual rights and liberties are under constant assault. Two recent examples are news stories about the nurse in London, Ontario who was fired from her job, apparently for helping to organize an anti-lockdown rally, and police in Montreal cracking down on religious gatherings.

These incidents (and others like them) raise all manner of interesting questions, such as what the legal outcome might be if cases like this are litigated, and the deeper question of whether it is just, right, or fair to take steps that seem to infringe on individual rights in order to combat COVID-19 (or whether it is just, right, or fair to insist on one’s personal liberties in the face of the pandemic, depending on your point of view). I could not begin to answer those questions in a column of this length. However, they do provide an interesting jumping-off point to discuss some of the ways that the Charter itself has built-in limits on the rights it purports to guarantee.

Charter rights typically do not apply to dealings between private parties

Section 32(1) of the Charter provides that the Charter applies “to the Parliament and government of Canada in respect of all matters within the authority of Parliament,” and “to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.”

In 1986, in the Dolphin Delivery case, the Supreme Court of Canada clarified that the Charter “was set up to regulate the relationship between the individual and the Government … to restrain government action and to protect the individual … [but] was not intended in the absence of some governmental action to be applied in private litigation.” However, as to the question of what would qualify as governmental action sufficient for the Charter to apply, the Court deferred, writing, “It is difficult and probably dangerous to attempt to define with narrow precision that element of government intervention necessary to bring the Charter into play by private litigants in private litigation.”

A lot of cases have considered just how much government involvement is needed for the Charter to apply. Some of the scenarios are fairly obvious; legislation passed by the government is clearly government action that has to comply with the Charter. Other situations are more difficult to predict; for example, in some cases, acts by a hospital have been found to be subject to Charter scrutiny, whereas other cases have found that there was not enough of a connection to government to make a hospital’s acts subject to the Charter.

Charter rights are subject to ‘reasonable limits’

Another section of the Charter that limits the rights protected by the Charter is Section 1, which provides that the rights guaranteed by the Charter are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Like the question of whether there is sufficient government involvement in any particular situation so that the Charter applies, the question of whether government action is a “reasonable limit” has been the subject of a good deal of discussion by the courts.

Another 1986 case of the Supreme Court, R. v. Oakes, developed a test to determine if a law that violated a Charter right could be saved by Section 1 of the Charter. In short, for a law to be a “reasonable limit” on a Charter right, it first has to have an objective that addresses a concern that is “pressing and substantial in a free and democratic society.” If the law in question meets that standard, then it must have a rational connection to the objective it purports to address, it has to infringe on the affected Charter right as little as possible, and the adverse impact of the law has to be proportionate to the importance of the objective that the law seeks to address. However, if a law can pass that test, the court can determine that it is valid even though it violates a Charter right.

The government can simply decide to override certain Charter rights

Lastly, Section 33 of the Charter provides that Parliament or a provincial legislature can “expressly declare” that a law will apply notwithstanding that the law infringes on a Charter right. While this section does not apply to all Charter rights, it provides governments with a powerful tool to infringe on many of the rights that people think of when thinking of individual rights, such as the rights of freedom of expression, freedom of religion, freedom of assembly, and the rights to be free from arbitrary detention and unreasonable search and seizure, among others. This clause provides the provincial and federal governments a strong tool to override many rights that would otherwise be protected by the Charter.

Where does that leave individual rights?

As noted at the outset, individual rights, even those protected by the Charter, are not absolute. Instead, they are subject to the rights and interests of others. The government can seek to limit them to protect some other pressing objective, and can even decide to limit them without providing a rationale by invoking Section 33 of the Charter. As to steps taken by government to address the pandemic, I suspect that if those measures are challenged, governments will likely argue that the measures are reasonable limits on individual rights meant to serve a greater goal (combatting the pandemic). That said, the current environment presents some interesting insights into some of the different points of view that people have about the interaction between their individual rights and the effect on others of exercising those rights.

Filed in: Human Rights

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