Examine whether your policy or legislation falls within any of the policy triggers listed above, that is, raises an issue under s. 15 of the Charter.

  • If the answer is ‘yes’, in most cases your task will be to consider whether it is a justified restriction on the rights protected by s. 15.
  • First, consider the nature of the harm that is being addressed.
    • Does it come within one of the following:

     

    • the protection of the rights and reputation of other persons?

     

    • national security?

     

    • public order?

     

    • public health?

     

    • public morality?

 

  • If so
    • Is the policy or legislation likely to be effective in addressing that harm?

     

    • Is that restriction limited to what is necessary to prevent the harm?

     

    • How serious is the harm or potential harm?

     

    • What is the extent of the restriction on freedom of expression?

     

    • Whose expression is restricted? Do they have realistic alternative avenues for communicating their message? Does the policy or legislation restrict more people than necessary?

     

    • What forms of expression are restricted? Does the policy or legislation restrict more forms than necessary? Are alternative avenues of communication open?

     

    • What subject matters of expression are restricted?
  • Is some alternative form of regulation possible that would result in a lesser restriction of freedom of expression?

 

    • Consider whether in your case an option would be to impose conditions on that form of speech to make it acceptable, rather than banning that form of speech altogether (for example, requiring product information and warnings rather than banning product advertising).
  • If not, consider whether it is a reasonable and demonstrably justified limitation pursuant to s. 7.