Charter Law, in the Canadian context, is governed by the Canadian Charter of Rights and Freedoms and is a part of the Canadian Constitution. The Charter provides individuals with protection from the government (federal, provincial and municipal) and from government regulated organizations, such as hospitals. The purpose of the Charter is to constrain governmental action which has the effect of infringing or limiting the exercise of society's rights and freedoms, as outlined by the Charter. For instance, some of the rights which society is guaranteed in the Charter include Section 2: Fundamental Freedoms, Section 7: The right to “Life, liberty and security of person” and Section 15: Equality Rights1.
Section 1 of the Canadian Charter of Rights and Freedoms is a very critical part of this document and it states:
“1. 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.”1
Essentially, Section 1 guarantees the rights and freedoms of all individuals. However, Section 1 also indicates that infringements on the rights and freedoms stated in the Charter can be allowed only if this deviation constitutes a limit which is thought to be reasonable in a “free and democratic society”. It is up to a court of law to decide whether or not an infringement of the law is reasonable.
The Oakes Test is a basic test which is used to determine whether or not an infringement is reasonable. The Oakes Test has two parts:
- In the first stage the government needs to illustrate that the legislation or governmental action addresses an important or pressing matter.
- Stage two is a proportionality test which measures the objective of the law against the burden of the claimant who is having one or more of their rights violated. Essentially, it needs to be illustrated that this law has a minimal impact on an individual or society.
1. Government of Canada. (2014). Constitution Act, 1982. Retreived from http://laws-lois.justice.gc.ca/eng/const/page-15.html
Title Image Credit: Wikimedia Commons© BrainMass Inc. brainmass.com December 10, 2018, 12:14 am ad1c9bdddf