Requirement for a section 1 case:
In order for a Charter right to be limited, the first of two
requirements is that this limitation must `be prescribed by law.
In R v Therens [1985] SCR 613, the Supreme Court of Canada held that the limit can be prescribed by statute or the common law. In Irwin Toy Ltd. V. Quebec (Attorney General) [1989], the Court found that any limit imposed must live up to a clearly intelligible standard that allows the judiciary to do its work. It cannot be so vague so as to amount to no standard at all. However, they added that absolute precision in the law exists rarely, if at all.
In R v Therens [1985] SCR 613, the Supreme Court of Canada held that the limit can be prescribed by statute or the common law. In Irwin Toy Ltd. V. Quebec (Attorney General) [1989], the Court found that any limit imposed must live up to a clearly intelligible standard that allows the judiciary to do its work. It cannot be so vague so as to amount to no standard at all. However, they added that absolute precision in the law exists rarely, if at all.
In common practice, this requirement speaks to the general
concept of the rule of law; if citizens are expected to obey the law, it is
fair that these laws be readily and easily known., S 1 allows for limited
violation of Charter rights, but the SCC, in recognizing that some level of
rights infringement is valid, has held Parliament on a short leash with which
to operate.
Here is a link to Lon Fuller’s story of a king named Rex who
tries to legislate for his political community.
Rex fails when he does not abide by the rule of law. This is a good illustration of rule of law
principles.
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