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allowing the application, Gibson J. cited past case authority and held
that pursuant to section
1 of the Charter, a person's Charter rights may only be subjected
to a reasonable limit that is prescribed by law. A limit has the "force
of law" if it is expressed or implied in a statute or regulation. By contrast,
a CD does not have the "force of law," that is to say a limitation that
is prescribed in a CD is not "prescribed by law." Gibson J. recognized
that the authority cited for the proposition that CDs are not "law" predates
the enactment of the CCRA and more particularly sections 97 and 98 of
that Act. However, Gibson J. was not satisfied that sections 97 and 98
of the CCRA in any way modify the status of CDs for the purpose of section
1 of the Charter. Furthermore, the CSC, in its argument filed
on this matter, did not rely upon CDs to justify the acknowledged derogation
from C's fundamental freedoms. Rather, the CSC relied on regulations enacted
under the CCRA and, more particularly, s96 of the CCR Regulations. Gibson
J. decided not to dwell on whether or not, on the facts of this matter,
the CCR Regulations provide a reasonable limit demonstrably justified
in a free and democratic society on C's fundamental rights. Suffice it
to say that, throughout the course of the correspondence between the CSC
and C surrounding the actions of the service infringing C's fundamental
rights, no reasonable limit prescribed by law that could be demonstrably
justified in a free and democratic society was cited to C to justify the
actions of the CSC. In response to his request, it was incumbent upon
the CSC officials to provide C with such justification. In failing to
do so and relying on the CD cited to C, the CSC erred in law.
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