LA CLAUSE LIMITATIVE DE L'ARTICLE 1 DE LA CHARTE CANADIENNE DES DROITS ET LIBERTES: UNE ASSURANCE CONTRE LE GOUVERNEMENT DES JUGES

Abstract

The limitation clause (section 1) of the Canadian Charter is a provision whose scope and application differ sensibly from that of similar provisions in the European Convention and international covenants. Subject to one exception all rights and freedoms guaranteed in the Charter may be limited by legislation. All laws or rules of law, even those that deprive persons of the enjoyment or the exercise of a guaranteed right, are subject to the test laid down in section 1 to determine their validity. However, the limitation clause only gives courts a narrow power to control state action infringing rights and freedoms. The test of reasonableness which is sanctioned by public law gives the legislative power a wide autonomy inasmuch as section 1 does not allow judicial control of the finality of the restrictive legislation unless it conflicts with the fundamental principles of a free and democratic society.