Reaching Equilibrium between Conflicting Rights

• Author: Errol P. Mendes
• Pages: 241-269

241

Chapter 9

Reaching Equilibrium between



Errol P. Mendes

 

under the Canadian Charter of Rights and

Freedoms1

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

[Charter].

2 R v Oakes, [1986] 1 SCR 103 [Oakes].

Errol P. Mendes

242

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-

3

         

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-

Charter

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].