Section 1 of the Charter
84
I come now to possible justification under s. 1 of the Charter, which reads:
1.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.
In order to justify a limitation of a Charter right, the government must establish that the limit is
"prescribed by law" and is "reasonable" in a "free and democratic society". In R. v. Oakes, [1986]
1 S.C.R. 103, this Court set out the analytical framework for determining whether a law
constitutes a reasonable limit on a Charter right. A succinct restatement of that framework can be
found in the reasons of Iacobucci J. in Egan, at para. 182:
First, the objective of the legislation must be pressing and substantial. Second, the means
chosen to attain this legislative end must be reasonable and demonstrably justifiable in a free and
democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1)
the rights violation must be rationally connected to the aim of the legislation; (2) the impugned
provision must minimally impair the Charter guarantee; and (3) there must be a proportionality
between the effect of the measure and its objective so that the attainment of the legislative goal is
not outweighed by the abridgement of the right. In all s. 1 cases the burden of proof is with the
government to show on a balance of probabilities that the violation is justifiable.
It is not necessary to consider each of these elements in this case. Assuming without deciding
that the decision not to fund medical interpretation services for the deaf constitutes a limit
"prescribed by law", that the objective of this decision -- controlling health care expenditures -- is
"pressing and substantial", and that the decision is rationally connected to the objective, I find that
it does not constitute a minimum impairment of s. 15(1).
85 This Court has recently confirmed that the application of the Oakes test requires close
attention to the context in which the impugned legislation operates; see Ross v. New Brunswick
School District No. 15, [1996] 1 S.C.R. 825, at para. 78. The Court has also held that where the
legislation under consideration involves the balancing of competing interests and matters of social
policy, the Oakes test should be applied flexibly, and not formally or mechanistically; see R. v.
Keegstra, [1990] 3 S.C.R. 697, at p. 737, McKinney, supra, Irwin Toy Ltd. v. Quebec (Attorney
General), [1989] 1 S.C.R. 927, at pp. 999-1000, Cotroni, supra, at p. 1489, Committee for the
Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at p. 222 (per L'Heureux-Dubé J.),
Egan, supra, at para. 29 (per La Forest J.) and at paras. 105-106 (per Sopinka J.), and RJRMacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 63 (per La Forest J.)
and at paras. 127-138 (per McLachlin J.). It is also clear that while financial considerations alone
may not justify Charter infringements (Schachter, supra, at p. 709), governments must be
afforded wide latitude to determine the proper distribution of resources in society; see McKinney,
at p. 288, and Egan, at para. 104 (per Sopinka J.). This is especially true where Parliament, in
providing specific social benefits, has to choose between disadvantaged groups; see Egan, at
paras. 105-110 (per Sopinka J.). On the other hand, members of this Court have suggested that
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