•  
  •  
 

Osgoode Hall Law Journal

Authors

Janet Hiebert

Document Type

Article

Abstract

The evolution of the limitation clause reveals a rigorous and changing political discourse about the nature of rights and limitations. While the larger issue in the entrenchment debate focussed on whether legislatures or courts were best suited to protect Canadians' interests, a fundamental concern underlying the debate was the scope of permissible limitations on protected rights. Many commentators argued that an explicit limitation clause was not necessary because courts would fashion the appropriate limits on rights. Provincial and federal drafters, however, rejected the assumption implicit in this suggestion: that the Charter was to provide an exhaustive statement of all values fundamental in Canada. Drafters, particularly those representing the provinces, insisted that enumerated rights contain explicit limitations so that they would not unduly impair governments from pursuing their policy agendas. Since the debate about entrenched rights was placed on the national political agenda in the late 1960s, a requirement for provincial support was a provision enabling governments significant latitude in enacting limits on protected rights. The Canadian Charter of Rights and Freedoms reflects this demand. An essential purpose of the limitation clause in section 1 is to ensure that legislators, in certain circumstances, be able to ensure the primacy of non-enumerated values over specified Charter rights.

Share

COinS