What is the test for a limitation on a right or freedom guaranteed by the Charter?
Saskatchewan, Canada
The following excerpt is from R. v. Pinehouse Plaza Pharmacy Ltd., 1988 CanLII 5281 (SK QB):
The leading authority which sets out the criteria to be addressed by the proponent of a limitation on a right or freedom guaranteed by the Charter is The Queen v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321. The onus of proof is on the party seeking the limitation and the standard of proof is the civil standard, proof by a preponderance of probabilities. Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to override a constitutional right. Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. This proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.
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