Rights, Freedoms, and Their Limits: Reimagining Section 1 of the Charter

When can the state place limits on basic human rights? This is a fundamental question for any liberal democracy.

In Canada, for rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, the answer is found in section 1 of this constitutional document. Section 1 provides that the state may only subject Charter rights and freedoms to limits that are “reasonable”, “prescribed by law”, and “demonstrably justified in a free and democratic society”.

But interpreting these standards has proven a difficult task, one which courts, decisionmakers, and legislatures have wrestled with over the first four decades of Charter jurisprudence.

This collection offers fresh, innovative, and insightful perspectives on these challenges, and on the proper scope, contours, and limits of rights and freedoms. It will be of value to jurists, scholars, governments, lawyers, students, and litigants alike.

The Collection of Papers

1. John Borrows—Foreword: Beyond Proportionality
2. Brian Bird and Derek Ross, General Editors—Rights, Freedoms, and their Limits: Reimagining Section 1 of the Charter: An Introduction
3. The Honourable Peter Lauwers—Are Pluralism and Antifragile Tolerance Essential in a Free and Democratic Society?
4. Benjamin Woodfinden—Legislative Reasoning, Participation and the Inescapable Normativity of the “Free and Democratic Society”
5. Grégoire Webber—What Oakes Could Have Said (or How Else to Read a Limitation Clause)
6. Dwight Newman, KC—Proportionality Maxims and Best Practices: An Essay on Using Oakes to Achieve a Post-Oakes Future
7. Jamie Cameron—Renewing Freedom of Expression, Part Two: From the Contextual Approach to Proportionality Balancing
8. Debra M. Haak—Revisiting the Analytical Distinction Between Section 7 and Section 1 of the Charter: Legislative Objectives, Policy Goals and Public Interests
9. Hoi Kong—Section 15(1): Precedent and Principles
10. Marcus Moore—Minimal Impairment: An Unreasonable Measure of the Justifiable Limits of Rights
11. Carmelle Dieleman—Proportionality—More than Balancing: Exploring the Doré Framework in Light of Section 1
12. Mark P. Mancini—The Future of Section 1 in the Law of Judicial Review
13. The Honourable Ian Binnie—Special Essay – Charter Metamorphosis: 1982-2022

Rights, Freedoms, and Their Limits: Reimagining Section 1 of the Charter is a collection of papers developed out of the Supreme Court Law Review, Second Series.