Reaching Equilibrium between Conflicting Rights

AuthorErrol P. Mendes
Chapter 9
Reaching Equilibrium between
Errol P. Mendes
 
under the Canadian Charter of Rights and
One of the most overlooked quotes from the Supreme Court of
Canada is the landmark ruling of Dickson CJC on the overarching
values to be kept in mind in interpreting the Charter, including
section 1, in R v Oakes.2 He stated that the key values of the
Charter can be found in the phrase “free and democratic soci-
ety” and it should also be used as the “ultimate standard” for
interpretation of section 1. Chief Justice Dickson articulated this
ultimate standard in the following terms:
    
for limits on rights and freedoms refers the Court to the very
purpose for which the Charter was originally entrenched in the
Constitution: Canadian society is to be free and democratic. The
Court must be guided by the values and principles essential to
a free and democratic society which I believe embody, to name
but a few, respect for the inherent dignity of the human person,
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK) 1982, c 11
2 R v Oakes, [1986] 1 SCR 103 [Oakes].
Errol P. Mendes
commitment to social justice and equality, accommodation of
a wide variety of beliefs, respect for cultural and group identity,
and faith in social and political institutions which enhance the
participation of individuals and groups in society. The under-
lying values and principles of a free and democratic society
are the genesis of the rights and freedoms guaranteed by the
Charter and the ultimate standard against which a limit on a
right or freedom must be shown, despite its effect, to be rea-
         
Court in Oakes and in subsequent decision have strived to do is
to “hunch” out a jurisprudential framework of what I call “contex-
tual equilibrium” in concrete cases where these values may con-
has been between two sets of rights, but in other cases between
rights and the other values not exhaustively listed by Dickson CJC
in his statement on what are the foundational societal values of
a free and democratic society. In both cases, but especially in the
latter case, the focus will immediately turn to the proportionality
analysis in section 1 of the Charter. This analysis will focus pri-
marily on the situation where the values underlying two sets of
        
theory, are the fundamental values of the Charter, they are sup-
posed to guide not only the development of the common law,
but also the interpretation of statutory law in Canada, including
quasi-constitutional human rights legislation, such as Ontario’s
Human Rights Code.4
the Supreme Court to shape the evolution of the Charter, has pro-
3 Ibid at para 64.
4 Human Rights Code, RSO 1990, c H.19 [Code].

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT