Concept 2: The Limitations

Rights and Freedoms in Canada

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.

Section 1 applies to every section of the Canadian Charter of Rights and Freedoms. This section allows limits on our rights and freedoms when the limitation can be justified by the government. For example, a freedom may be limited in order to prevent infringement of the rights or freedoms of others. The rights and freedoms included in the Charter, although guaranteed, are not absolute.

Section 1 states that in order for a Charter right to be lawfully limited, the limit must be "demonstrably justified in a free and democratic society."i This basically means that limiting someone's Charter rights must be reasonable in that it must seek to address an issue of pressing or substantial concern, done in a legal or lawful manner, and that it cannot have a disproportionate impact or effect.

Several cases in Canada's judicial history since 1982 have required a careful analysis of the section 1. One such case is R v. Keegstraii. Mr. Keegstra, a History teacher in Alberta, taught that the Holocaust did not actually occur and was merely fabricated by Jewish people in order to gain the world's sympathy. He included these theories as required answers in tests and assignments. He was subsequently charged with promoting hate speech. Mr. Keegstra challenged the hate speech section of the Criminal Code as an unjustified limitation on his section 2(b) Charter rights, the freedom of expression.

Without section 1 of the Charter, Mr. Keegstra's argument would have been successful. He was indeed exercising his right to free speech, which includes the right to say things that others may not agree with. It was task of the Crown to prove that limiting Mr. Keegstra's anti-Semitic teaching was acceptable in a free and democratic society. The Supreme Court decided that the Crown was justified in limiting Mr. Keegstra's freedom of expression because the impact of limiting Mr. Keegtra's section 2(b) of the Charter was not as severe as the damage caused by Mr. Keegstra's hate-spreading teachings. This case highlights that rights and freedoms guaranteed in the Charter are not absolute. It was necessary to limit Mr. Keegstra's freedom of speech in order to uphold his students' rights to be protected from discrimination. At times, it is necessary to limit rights and freedoms in consideration of the relative interests of other rights holders in society. Section 1 of the Charter allows governments and courts to balance competing interests.