There are two stages that must be satisfied before finding that your Charter right was unjustly breached:   

  1. One of my Charter rights or freedoms has been breached (view the framework for each right and/or freedom here);
  2. The government’s interference with my right or freedom was not reasonably justified in a free and democratic society.

Breach of a Charter Provision

The first question requires you to determine if the action you have complained of falls within the meaning or content of a Charter right or freedom. By analyzing both the law and the right or freedom, the Court can determine if the government action has infringed a Charter right or freedom (a detailed discussion of the most commonly invoked Charter rights and freedoms are located here).

Section One: The Proportionality Test 

If the answer to question one is yes, the Courts move on to stage two: Was the breach justified?

Charter rights and freedoms are not absolute – the government is permitted to impose reasonable limits on them. In all Charter cases, the government is given the opportunity to justify any breach through a mechanism known as the "proportionality test". The proportionality test is a function of s. 1 of the Charter, which states:

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 permits a balancing of individual rights and freedoms against valid government objectives and policies. This balancing act is commonly known as the proportionality test. It seeks to locate “reasonable limits” that can be “demonstrably justified in a free and democratic society.”

This has serious implications for any person pursuing a Charter claim. Practically speaking, if you have established that one of your Charter rights have been breached, this is not the end of the story. The government is permitted to justify its actions by relying on section 1. The government successfully justifies its actions in approximately 40% [check] of Charter cases.

The Section 1 Test

The s. 1 test was first explained in the landmark decision of R v Oakes, [1986] 1 SCR 103 and expanded upon in Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835. Before applying the proportionality test, the Court first assesses the government’s objective in enacting the legislation (i.e., the problem the government wants to solve or the reason the government has enacted a particular law). This objective must be sufficiently important (i.e., pressing and substantial) to permit overriding a Charter right or freedom. The more serious the infringement, the more important the objective has to be.
Once this has been determined, the proportionality test is assessed. This has three stages:   

  1. Is there a “rational connection” between the government’s objective (their goal) and what they have done to achieve that objective? In other words, the government action has to be connected to its objective.
  2. Does the government action impair Charter rights as little as possible?
  3. Is the effect of limiting the Charter right proportional to the valid objective the government is pursuing?

If the government passes the proportionality test, then the government action is permitted, despite the fact that it infringes on a Charter right. While the burden to satisfy the s. 1 test always lies with the government, you must always expect to deal with the proportionality test if you are pursuing a Charter case.