SUPREME COURT OF CANADA CITATION: Alberta v. Hutterian ...

[39] Section 1 requires that before a proportionality analysis is undertaken, the court mustsatisfy itself that the measure is “prescribed by law”. If a limit on a Charter right is not “prescribedby law” it cannot be justified under s. 1. Rather, it is a government act, attracting a remedy unders. 24 of the Charter. Regulations are “measures prescribed by law” under s. 1 of the Charter: seeIrwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 981; R. v. Therens, [1985]1 S.C.R. 613, at p. 645.[40] The majority of the Court of Appeal expressed concern that the challenged measure wasadopted by regulation and therefore without any legislative debate, pursuant to an Act with verydifferent objectives. The respondents take this position much further and advance a generalproposition that Charter-infringing measures may only be adopted by primary legislation. Concernabout overextension of regulatory authority is understandable. Governments should not be free touse a broad delegated authority to transform a limited-purpose licensing scheme into a de factouniversal identification system beyond the reach of legislative oversight. However, that is not whathas happened here. A photo requirement has been an accepted part of the motor vehicle licensingscheme for decades. It is not a stand-alone identification divorced from the public-safety purposeof the authorizing legislation. Moreover, hostility to the regulation-making process is out of stepwith this Court’s jurisprudence and with the realities of the modern regulatory state: see Little SistersBook and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, atpara. 71; D.J. Mullan, Administrative Law – Cases, Text and Materials (5th ed. 2003), at p. 948.Regulations, passed by Order in Council and applied in accordance with the principles ofadministrative law and subject to challenge for constitutionality, are the life blood of theadministrative state and do not imperil the rule of law. Whether the impugned measure was passed