The Canadian courts have adopted a two-step process of interpretation and justification to give the general language of the Charter concrete meaning. First, the courts interpret the meaning of the right or freedom at issue to determine whether the matter complained of constitutes an infringement. Often, at this first stage, the courts have avoided narrow definitional limitations on rights that take into account the general social interest. It has been held, for example, that commercial advertising,18hate propaganda,19and pornography20are, subject to limitations justifiable under section 1, forms of expression protected by section 2(b). Only violence has been held to be excluded from the definition of expression.
With respect to some other rights, however, the courts have taken a more restrictive approach and defined certain limits to their scope. In interpreting the right to vote in section 3, for example, the courts
have held that this provision gives a right to effective representation, not a guarantee of "one person, one vote."21Freedom of association was initially limited by excluding some group activities, such as the right to strike.22Section 15, the equality guarantee, can be invoked only by those discriminated against on the basis of the enumerated grounds (for example, race, sex, or disability) or analogous grounds.23Certain rights are defined in a contextual manner. For example, the section 8 right to be protected against unreasonable search and seizure requires the courts to take into account the context in which the right is claimed when defining what searches and seizures are "unreasonable."24A claimant can demonstrate that a right has been infringed either by looking at the government’s purpose or at the effects of the govern-ment’s actions. In some cases, the legislature’s purpose will directly interfere with the exercise of the right - for example, a state-imposed compulsory religion for all would violate freedom of religion in section 2(a). In most cases, while the underlying objective of state action is not to interfere with a protected freedom, the legislation being challenged has that effect. For example, when a government prohibits individuals from fastening anything to telephone poles, the objective may be to prevent unsightly displays or even obstructions that may interfere with traffic safety. However, the effect of such a rule is to prevent the putting up of posters, which can be seen as an interference with freedom of expression.25Once a right is infringed, the case is not over. The Charter recognizes that rights are not absolute; there are many situations when the interests of society at large or the rights of other individuals will require that the claimant’s rights be limited. The consideration of whether these limits are justified under section 1 of the Charter, as reasonable limits prescribed by law in a free and democratic society, is left to the second step of a rights case - justification pursuant to section 1. The balance of this chapter discusses the initial interpretive stage, leaving the limitation of rights to Chapter 4.
From the earliest Charter cases, the Supreme Court of Canada clearly recognized that Charter adjudication should be different from the trad-
itional work of the courts. In Law Society of Upper Canada v Skapinker,26 the first Charter case to reach the Court, the judges indicated that they were prepared to assume responsibility for interpreting this "new yardstick of reconciliation between the individual and the community and their respective rights." Mindful that the "Charter is designed and adopted to guide and serve the Canadian community for a long time," Estey J added that "narrow and technical interpretation" that could "stunt the growth of the law and hence the community it serves"27 would be avoided.
In another early case, Hunter v Southam,28the Supreme Court distinguished the method of statutory construction from that of constitutional interpretation. Insisting that the Charter must "be capable of growth and development over time to meet new social, political, and historical realities often unimagined by its framers," Dickson CJC repeated Professor Paul Freund’s plea that courts should not "read the provisions of the Constitution like a last will and testament lest it become one."29A similar note was struck by Beetz J in Manitoba (AG) v Metropolitan Stores (MTS) Ltd30when he dismissed the contention that the "presumption of constitutionality" should be weighed in the scales of Charter adjudication: "[T]he innovative and evolutive character of the Canadian Charter of Rights and Freedoms conflicts with the idea that a legislative provision can be presumed to be consistent with the Charter."31The rights and freedoms set out were not "frozen" in content and had to "remain susceptible to evolve in the future."32These passages harken back to earlier decisions of the Privy Council and the Supreme Court of Canada interpreting the Constitution Act, 1867, in which the judges advocated an "organic" or "progressive" theory of interpretation with respect to the constitution. The judges rejected an approach advocated by some American scholars and judges, which emphasizes the original intent of the framers of the constitution and interprets the document in light of the meaning of its terms at the time it was created. The "original intent" approach was soundly rejected by the Privy Council as being inconsistent with the idea of an enduring constitution that, if it is to last, must be capable of growth and expansion. In the Edwards case, the Privy Council determined that, in the
twentieth century, women were qualified "persons" for the purposes of eligibility for Senate appointments, even though in 1867, at the time the constitution was adopted, women were not eligible to hold public office. Viscount Sankey’s words from that case have been frequently quoted:
The B.N.A. Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada . . .
Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire - to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation . . .33The Supreme Court reaffirmed the vitality of the "living tree" approach to constitutional interpretation in Reference Re Same-Sex Marriage34when it unanimously rejected the idea that Parliament’s jurisdiction over marriage under section 91(26) of the Constitution Act, 1867 was limited to marriages as understood at the time of Confederation.
The Supreme Court of Canada has specifically held that the supposed "original intent" of those who drafted the Charter will not be conclusive in its interpretation for two reasons.35First, statements of the intent of particular individuals are an unreliable guide to discerning the intent of many others who took an active role in the creation of the Charter. Furthermore, it is doubtful that there was a single or identifiable intent shared by all, given the number of federal and provincial politicians and bureaucrats involved. Second, adoption of a strict interpretivist approach would freeze the meaning of the Charter at a particular time "with little or no possibility of growth, development and adjustment to changing societal needs."36Even if there were concrete evidence to help in determining the original understanding of the right, it would be wrong to fasten on to that meaning without question, for the original drafters themselves in all likelihood considered this to be an inappropriate method of interpretation. Constitutions are deliberately phrased in general, open-ended terms in order to let them adapt to changing circumstances and needs over the years. In the words of the late Ronald Dworkin, constitutions are meant to set out concepts,
not conceptions, and thus, their content necessarily varies over time and place.37Given the rejection of "original intent" to guide interpretation, how should a court proceed? In Hunter v Southam, the Supreme Court of Canada first enunciated and applied the "purposive" method that has served as the standard approach in the elaboration of Charter rights and freedoms. This is a complex, value-laden exercise that draws upon a range of sources in the innovative spirit that the Charter demands. It calls upon the judge to reflect upon the purpose of and rationale for the Charter right at issue in the light of the overall structure of the Charter, our legal and political traditions, our history, and the changing needs and demands of modern society.
Perhaps the most often cited passage describing the nature of this exercise of purposive interpretation is from the judgment of Dickson J in R v Big M Drug Mart Ltd:
In my view, this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court’s decision in Law...