Document Type

Article

Publication Date

1989

Source Publication

McGill Law Journal/Revue de Droit de McGill. Volume 35, Number 1 (1989), p. 253-277.

Keywords

balance between individual and collective values; Canadian Charter; Interpretation; Irwin Toy; s. 1; s. 2(b)

Abstract

The author submits that the logic and purpose of the Canadian Charter of Rights and Freedom, as it was originally conceived, demand that the substantive rights be given a broad and literal interpretation with limitations imposed exclusively under section 1. This distinction between breach and justification must be maintained to preserve the Charter's integrity. The author suggests that the Supreme Court of Canada's decision in Irwin Toy will only perpetuate the confusion surrounding Charter interpretation. The Court again failed to articulate a concrete conception of section 1 review, and, in obiter dicta, noted that forms of expressive activity having physical consequences were not expression under s. 2(b). The incorporation of justificatory criteria in defining the scope of the right doctrinalizes the choices which the Court would otherwise have to make openly under section 1. The author concludes that only a return to the original conception of the Charter can salvage its uniquely Canadian balance between individual and collective values. Such a reinterpretation entails the reform of the rigid Oakes test to allow for diverse standards of justification.

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