The Dutiful Conscript: An Originalist View of Justice Wilson’s Conception of Charter Rights and Their Limits

Authors

Adam M. Dodek

Abstract

During her relatively short time on the Supreme Court, Justice Wilson constructed an independent and distinct approach to the relationship between rights and their limits under the Charter. To Justice Wilson, judicial review was a duty imposed on the courts by the Charter through a deliberate and high-profile democratic process. Her conception of the judicial role under the Charter draws its sustenance from a strong historical claim about both the purpose and the process of rights entrenchment under the Charter. Properly understood, Justice Wilson’s vision of the relationship between rights and their limits under the Charter is an originalist one — one that is based on the assertion that the legitimacy of the judicial interpretative role finds its source in the events of 1980-82, when the Charter was enacted. In this paper, I analyze Justice Wilson’s conception of rights and limits under the Charter and demonstrate how it is anchored in a normative vision of the events of 1980-82. I the n demonstrate how this originalist conception of the Charter permeated Justice Wilson’s model of the relationship between rights and their limits, mostly, but not exclusively, through her section 1 jurisprudence. In this part, I distinguish between the multiple meanings of R. v. Oakes — the case, the framework and the test — and show how Justice Wilson focused on the much stricter Oakes framework while her colleagues were relaxing the Oakes test. This part further shows how Justice Wilson’s fidelity to the strictness of the Oakes framework translated into her staunch insistence on section 1 as the sole source of limits on rights, her fixation on onus and evidence and her understanding of the relationship between section 1 and other sections of the Charter. Finally, this paper ends with a brief conclusion on the the mes of constitutional duty and destiny.

Citation Information

Dodek, Adam M.. "The Dutiful Conscript: An Originalist View of Justice Wilson’s Conception of Charter Rights and Their Limits." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 41. (2008).
DOI: https://doi.org/10.60082/2563-8505.1144
https://digitalcommons.osgoode.yorku.ca/sclr/vol41/iss1/14

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