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Interpreting the Charter

Abstract and Keywords

This chapter examines the judicial approach to the interpretation of the Canadian Charter of Rights and Freedoms. Attention is paid to the general interpretive techniques developed by the courts to determine both the content of Charter rights and their limitations, while also considering the judicial use of internal and external interpretive aids, including both foreign and international law, such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights. It is also argued that the national context plays an important role, with the interpretive role of the court ultimately to be guided by a sense of balance in protecting rights and recognizing their limitations.

Keywords: Canadian Charter, Rights and Freedoms, interpretation, national context, internal aids, interpretive techniques, external aids, foreign law, international law, court’s role

1. Introduction

*Bills of rights, by their nature, contain abstract statements of guarantee that inevitably require interpretation when those guarantees are applied to particular facts and specific policies. The Canadian Charter of Rights and Freedoms1 is no different in this respect, although like other bills of rights, the national context also plays a role in influencing and guiding the interpretive approach. Indeed, despite various influences at play, and a desire to share its approach with others, Canada’s Charter remains emphatically a Canadian instrument,2 interpreted by jurists and non-jurists alike as a national statement of Canada’s most enduring legal and societal values.

The aim of this chapter is to identify the general approaches to Charter interpretation embraced by the judiciary, and in particular the Supreme Court of Canada, given its role as the independent third party tasked with the resolution of interpretation disputes. The chapter begins by reviewing the key considerations that underpinned the Charter’s adoption in 1982, suggesting that there is a spirit of ‘constitutional nationalism’3 that animates the post-1982 interpretive approach. The inclusion of several internal aids to interpretation within the Charter’s text is then discussed, noting their embrace of (p. 622) certain key Canadian values, including respect for Canada’s multicultural and bilingual heritage, as well as equality between the sexes. I then examine the general interpretive techniques developed by the courts, including the use of progress, purpose, generosity, and context, with each technique discussed in turn so as to avoid their conflation. I also consider the judicial use of external aids to interpretation, including both foreign and international law, before closing with a brief mention of the vexing issue of the role for the court and the determination of institutional boundaries. Throughout, there is a sense of ‘give and take’, of rights protection and limitation, and of accommodation and balance, that may itself constitute a key national value, and thus serve as the overarching guidepost for interpreting the Charter.

2. National Considerations

The Charter is a nation-building instrument. Its adoption was part of a package of reforms intended to solidify a national identity through the cutting of ties to the British Parliament and the provision of an agreed set of rights for all, regardless of their province of residence. Rights were not, however, absent from Canada prior to the Charter, with protections provided by convention, the common law, and a number of provincial and federal anti-discrimination codes.4 Indeed, in Canada, these anti-discrimination statutes are often called ‘human rights codes’ even though they do not protect the full range of human rights, reflecting a strong Canadian cultural practice of equating human rights with equality rights.5 These statutes prohibit discrimination within the context of employment, accommodation, and publicly available services. They also continue to thrive in the post-Charter era, having been elevated in status to quasi-constitutional instruments, with consequential implications for the appropriate interpretative approach.6

The Charter is also not Canada’s first bill of rights. An earlier effort entitled the ‘Canadian Bill of Rights’ was enacted in 1960,7 but its ineffectiveness as an ordinary statute applicable only to federal laws has been widely acknowledged as a factor in the push for the Charter’s development. Ordinary in form, and thus suspect as to mandate, the Bill failed to engender a culture of rights within the judiciary, and as lamented by its (p. 623) drafter, it ‘received a poor reception from the legal profession’.8 It also launched Canada on a distinct path. There are not many countries that have tried and failed, and then tried again, with respect to the enactment of a bill of rights—England being a sui generis case with the adoption of the English Bill of Rights of 16889 and the much later passage of a modern bill of rights in 1998.10 There are, of course, countries that have amended an original bill of rights, with the United States being Canada’s neighbouring example, and with the American Bill of Rights11 also originally of application only to the federal government. By contrast, the Charter has applied to all levels of government since its adoption.12 It is also part of Canada’s ‘supreme law’,13 with the constitutional embrace of a clear mandate to declare ‘any law that is inconsistent’ to be ‘of no force and effect’14 seen as signaling support for a more robust judicial interpretive approach. The Canadian Bill of Rights, however, remains in force, now fully embraced as having quasi-constitutional status.15

At age 35, the Charter is also a young bill of rights, with its drafters aware of experiences elsewhere with older instruments. Indeed, the structure of the Charter shares certain genealogical links with the Universal Declaration of Human Rights of 1948,16 which has served as a source of inspiration for many of the bills of rights adopted by newly independent states since the 1950s.17 Like the Declaration, the Charter eschews the absolutist approach to listing rights often associated with the American Bill of Rights, itself inspired by the English Bill of Rights, among other sources. Such absolutism is, however, tempered in practice by the inevitability that judges will read in some limitations to some otherwise unqualified rights; a point often made with reference to the opinion of Justice Oliver Wendell Holmes, Jr. on ‘falsely shouting fire in a theatre’ as a limitation (p. 624) on freedom of speech.18 Thus once agreement is reached on the rights to include, the key issue of concern for the drafters of any new bill of rights is the degree of guidance to be provided within the text itself with respect to their limitation.

To this end, the drafters of the Charter opted for a qualified approach that would expressly embrace the balancing of rights protection with respect for wider societal concerns. The heart of this approach is the limitations provision found in section 1, which makes clear that the Charter’s guarantees are ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. Although often touted as a Canadian innovation, section 1 is clearly a descendent of the general limitations clause used in the 1948 Declaration,19 with the latter’s influence somewhat surprising given that the treaties adopted to give legal force to the Declaration’s aspirations embraced a more tailored approach.20 There is, for example, no ‘one-size-fits-all’ general limitations clause in either the European Convention on Human Rights, or the International Covenant on Civil and Political Rights (ICCPR),21 with their drafters having recognized that some human rights are indeed unqualified and absolute.22

The Charter’s drafters were aware of these texts, with Canada’s accession to the ICCPR six years before the Charter’s adoption leading to its use as inspiration for some Charter rights.23 However, civil society groups hoping for a robust Charter were worried about the judicial use of a text containing multiple grounds of exception. The inclusion of an ‘across-the-board’ limitation clause was thus a compromise intended to convey strong support for fundamental rights, while also reassuring provinces that there remained some scope for legislative sovereignty.24 Given the similarities between the Charter’s (p. 625) limitation clause and the Declaration’s final clause, albeit instruments of a different nature, the true Canadian innovation was its placement at the front of the text,25 although a number of Charter rights did emerge with their ‘own internal qualifications’ and their ‘own method of internal balancing’.26 A legal-political culture still supportive of the British constitutional tradition of parliamentary sovereignty also led to the inclusion of a legislative override provision.27

3. Interpretive Aids within the Charter

Any interpretation of the Charter must begin with a textual analysis, since ‘without some link to the language of the Charter, the legitimacy of the entire process of Charter adjudication is brought into question’.28 The text shows that the Charter protects six categories of rights, a conclusion supported by reference to the headings that form an ‘integral’ part of the Charter’s provisions.29 These rights range from classic liberties from state interference, now labeled as ‘fundamental freedoms’, to democratic and mobility rights for citizens; legal rights, including the ‘right to life, liberty and security of the person’; robust equality rights; and linguistic rights relating to the use of English and French. The rights are listed one after the other, ostensibly with equal force and effect, with the courts having confirmed that there is no hierarchy between Charter rights.30 The Charter is ‘to be read as a whole, so that one right is not privileged against another’,31 and as part of the wider Canadian constitution, even though not all Charter rights are at risk with respect (p. 626) to the legislative override.32 Language rights are one example, with respect for Canada’s official bilingual character itself an interpretive factor, with the English and French versions of the Charter considered equally authoritative.33 Discrepancies are resolved by appealing to the meaning that best reconciles the two texts, taking into account the purpose of a particular guarantee with a degree of generosity.34

The Charter also contains a number of internal aids to interpretation, which serve to affirm that certain Canadian cultural values are taken into consideration when interpreting the rights provisions as well as their limitation. Section 27, for example, recognizes Canada to be a multicultural society where immigrants from diverse nations are encouraged to retain their heritage and distinct cultural identities, whereas section 28 emphasizes a commitment to equality between the sexes. These provisions do not themselves confer any rights, although it has been argued that section 28 was intended to be ‘rights enhancing’,35 and even as interpretive aids, the provisions are not without their own limitations. Section 27 must be read so as not to detract from the Charter’s specific protections for French and English linguistic communities (sections 16–23), whereas section 28 must be read with the Charter’s express protection for affirmative action programs (section 15(2)). Initially deemed as ‘meaningless’ by the doyen of Canadian statutory interpretation,36 these provisions have attracted judicial mention, but in a general way and without any discernible impact.37 However, not all cultural and religious practices will be considered compatible with other Canadian values embedded within the fabric of the legal system, as illustrated by reference to the wearing of a face-covering veil while testifying in circumstances where there is a serious risk to trial fairness.38

Several additional internal aids also serve to emphasize that it is not the goal of the Charter to remove any pre-existing rights and freedoms (section 26), nor is the Charter to be construed so as to ‘abrogate or derogate’ from any rights or freedoms held by (p. 627) Aboriginal peoples (section 25). The Charter also does not take away any rights or privileges guaranteed by the Constitution in respect of ‘denominational, separate or dissentient schools’ (section 29). Notwithstanding the Charter’s embrace of multiculturalism, the public funding of minority Protestant and Catholic schools in some Canadian provinces remains constitutionally protected, as it has since Confederation.39 It is also permissible for a province to fund only these schools and deny public funds to private religious schools of other denominations,40 a compromise that has attracted international criticism in relation to Canada’s obligations under the ICCPR.41

4. Interpretive Techniques

Although the starting point for Charter analysis remains the language of the text, the courts have also developed a number of interpretive techniques to help guide the application of the Charter’s guarantees to specific facts and circumstances. These techniques support the use of a progressive, purposive, generous, and contextual approach, with Justice Brian Dickson (as he then was) having emphasized that the ‘task of expounding a constitution is crucially different than interpreting a statute’.42 An ordinary statute may be repealed by future legislation, but ‘a constitution, by contrast, is drafted with an eye to the future’,43 with the Charter to be interpreted as a continuing framework for constraining government actions and protecting fundamental rights. By their nature, however, these techniques can only offer guidance of a general nature, with critics noting that there are limits to progress and generosity, and an array of purposes available for judicial endorsement whether or not contextual factors are taken into account.

A. Progressive Interpretation

It is well settled in Canada that the Charter is a dynamic and evolving instrument with the courts having long embraced what is called a progressive interpretive approach. As a text entrenched within a constitution that is highly resistant to change, the Charter must be interpreted, in the words of Justice Dickson, so as to be ‘capable of growth and development over time to meet new social, political and historical realities often unimagined by the framers’.44 This evolutive approach to interpretation is viewed as the (p. 628) logical extension of an understanding expressed long ago that the British North America Act, now renamed the Constitution Act, 1867, ‘planted in Canada a living tree capable of growth and development within its natural limits’.45 Despite having arisen within the imperial context of a British court’s rejection of a Canadian court’s decision concerning the eligibility of ‘qualified’ persons to sit in the Senate, this notion of the Constitution as a ‘living tree’ remains a strong and enduring one. Its embrace of a ‘progressive interpretation [that] accommodates and addresses the realities of modern life’ has been described as one of the ‘most fundamental principles of Canadian constitutional interpretation’.46

It is also a metaphor with intuitive appeal, particularly if the alternative is a ‘dead’ constitution,47 or a frozen conception of rights,48 and there are parallels in other jurisdictions, both domestic and international,49 including those with cultural-legal ties to Canada. The European Court of Human Rights, for example, has long embraced what it calls a ‘living instrument’ approach to ensure that the protection of rights throughout Europe accords with present-day conditions. This concept, first expressed in a 1978 case concerning the judicial use of corporal punishment,50 has become a central feature of the Court’s approach to the interpretation of an instrument that bears many similarities to the Charter.51 The Human Rights Committee has also made use of an evolutive approach, making clear in a case critical of Canadian actions that the ICCPR ‘should be interpreted as a living instrument and the rights protected under it should be applied in context and in the light of present-day conditions’.52

Metaphors, however, have their limits, and trees indeed have roots, spurring on various tree-related aphorisms about the risks of trees toppling if left to grow beyond their ‘natural limits’ or in soil bereft of the nutrients provided by history and tradition. Canadians are not unaware of the debates within the United States concerning a ‘living constitution’ versus an ‘originalist’ one,53 including the existence of competing (p. 629) originalist approaches.54 But these battles have less purchase in a jurisdiction where the bill of rights was adopted after the planting of the ‘living tree’, even if the tree was not watered by Canada’s highest court until the 1980s.55 The key issue of concern is where and when to draw the limits, suggesting a balance to be achieved between the twin-goals of legal certainty and flexibility. The former is secured by a fidelity to past precedent whereas the latter embraces a change in course, for a good reason, ideally clearly stated, much like judge-made law in the common law tradition can evolve to address new realities.56 Criticisms about whether a reason is ‘good’, or ‘good enough’, suggest a need for principles to guide the application of the progressive approach, but not an end to the approach itself.

B. Purposive Interpretation

As for the determination of the content and scope of specific Charter rights, here it has been emphasized that the proper interpretive approach is a purposive one.57 This approach requires the interpreter to determine the underlying purpose of each Charter guarantee, taking into account ‘the nature of the interests it is meant to protect’58 while recognizing the instrument’s character and origins. Using a purposive approach, the interpreter must examine the text of the rights provision, and likely that of any other associated rights, as well as ‘the character and larger objects of the Charter itself’ and ‘the historical origins of the concepts enshrined’.59 Often the underlying purpose of a right is grounded in such cultural values as respect for equality and the inherent dignity of the human person, but for some Charter guarantees, such as freedom of association, the underlying purposes can include both individual and collective goals.60 A purposive approach may also lead to an analysis that includes among the provision’s aims the honouring of Canada’s international human rights obligations,61 although these obligations are likely not determinative, with a Canadian purposive approach being the ultimate aim.62

(p. 630) Once determined, the purposes of a Charter right or freedom are then cast in ‘large and liberal’ terms,63 absent any specific language of restriction within the Charter provision, and ‘absent any particular historical, political or philosophic context capable of providing an obvious gloss on the meaning of the guarantee’.64 Flexibility is also encouraged so as to ensure that the meaning and scope of a Charter guarantee is not exhaustively defined, given the continuing role for the Charter to serve as a framework within which to address new and future circumstances. It is also important to consider both the purpose and effect of the legislation under challenge in Charter cases,65 with this approach being one that differs substantially from that used in division-of-powers cases where spillover effects are tolerated.66 This method of ‘purpose and effect’ is not, however, the same as the ‘purposive approach’ since the first is focused on the legislation being impugned, while the second focuses on the content of the Charter. However, the underlying rationale for both methods is the same, with both techniques considered vital to ensuring that individuals are given what is often called the ‘full benefit’ of the Charter’s guarantees.

To this end, the purposive interpretation of a Charter guarantee, whether cast as a right or a freedom,67 may impose a positive obligation on the state to provide some process for the full enjoyment of that ‘large and liberal’ guarantee. The development of a ‘positive rights’ jurisprudence in Canada has been both notable and not without opposition, as the Charter is ordinarily viewed as a ‘negative rights’ instrument imposing constraints on government action, rather than an instrument imposing affirmative duties to enact protective legislation.68 There are cases where the courts have required governments to address a situation of under-inclusion in an existing scheme that resulted in the denial of effective protection for persons in a situation of vulnerability,69 but a majority of the court was not ready to accept the more radical argument of a positive obligation to the basic necessities for survival, in essence establishing a right to welfare assistance.70 However, within the context of labour relations, the development of a positive rights dimension to the purposive approach to Charter interpretation has now led (p. 631) to the judicial recognition of a right to a process of collective bargaining,71 and a right to strike,72 notwithstanding past precedents to the contrary that were decided within the Charter era.73

C. Generous Interpretation

As is often stated, a constitutional bill of rights should also be given a ‘generous interpretation’, with generosity requiring the absence of rigid and pedantic formalism so as to give individuals the full measure of their rights. One of the more famous expositions of this principle is that found in Lord Wilberforce’s speech in Minister of Home Affairs v Fisher concerning the Bermudian Constitution, which gave judicial voice to the exhortation by Professor Stanley de Smith to ‘bring out the general purpose of the guarantees and avoid the austerity of tabulated legalism’.74 This approach is strongly supported in Canada, where it has long been held that the interpretation of the Charter’s rights and freedoms should be ‘a generous rather than a legalistic one’.75

Generosity, however, also has its limits, with Chief Justice Dickson having cautioned that it is important when using a generous approach ‘not to overshoot the actual purpose of the right or freedom in question’.76 Indeed, it has been argued that the use of a generous approach, without subordination to purpose, upsets the balance between rights protection and rights limitation that is at the heart of the Charter’s scheme. The worry is that the widest possible reading of a Charter right, as encouraged by a generous interpretation, leads to the inclusion of a variety of legal entitlements, not all of which deserve constitutional protection, which in turn places pressure on the court to relax its approach when evaluating the government’s justifications for limiting these rights under section 1.77 Long ago enunciated by Professor Peter Hogg, this position has received express judicial endorsement, with Canada’s highest court expressly warning against the conflation of the purposive and generous approaches, such that ‘the purpose of a right must always be the dominant concern in its interpretation; generosity of (p. 632) interpretation is subordinate to and constrained by that purpose’.78 Purpose may, however, be subordinate to a progressive interpretation, with the location of a right to strike within the Charter’s guarantee of freedom of association being a generous interpretation that is only restrained by purpose if that purpose is itself interpreted in an evolutive manner to accord with contemporary views.79

D. Contextual Interpretation

Flexibility in Charter interpretation has also been encouraged by the embrace of context as an additional tool to be used to determine the scope and content of a Charter right, and in particular, the reasonableness of any justifications for its limitation. The use of a contextual approach means that ‘a particular right or freedom may have a different value depending on the context’, and thus Charter rights and freedoms may have ‘different meanings in different contexts’.80 For example, freedom of expression within a political context has greater value in a democracy than say expression for commercial purposes or for the purposes of disclosing the intimate aspects of an individual’s private life. A contextual approach enables these different values to be taken into account, particularly at the section 1 stage in a Charter analysis. In such cases, context is viewed as a means to secure a ‘sensitive case-oriented’ analytical approach, which is necessary since Canadian jurisprudence does not embrace specific tests for different kinds of expression.81 The requirements of fundamental justice relevant to a section 7 analysis may also vary according to context, resulting in different values to be attributed to interests such as privacy.82

There is, however, another use for context, where the broader political and social realities are used to ‘set the scene’ before engaging with the specific steps in Charter analysis now required by settled jurisprudence. This kind of broad contextual approach has been used to highlight the impact of trials on child victims of abuse, allowing the use of social science research to establish the reluctance of young victims to testify against their abusers.83 It has also been used to highlight the prevalence and impact of discriminatory beliefs in trials for sexual conduct.84 However, judicial engagement with a wide-ranging contextual inquiry does raise concerns for the focused nature and preparation costs of litigation, with some judges appearing to question the need for extensive (p. 633) external sources when one can give judicial notice to such matters as the power imbalance between adults and children ‘by virtue of their age’.85 Given its declining use as an overarching or preliminary consideration, many judges appear to have heeded the warning to be careful ‘not to allow the discussion of context to pre-empt the analysis itself’.86

5. External Aids to Interpretation

Canadian appellate courts have shown a willingness to consider an array of external aids to Charter interpretation, ranging from scholarly writings, newspaper commentary, and parliamentary reports, to foreign laws and the judgments of foreign courts, as well as a variety of international reports, treaties, and formally non-binding declarations. The writings of legal philosophers and political theorists have also been cited, with John Stuart Mill being a particular favourite. It is, however, often difficult to discern the weight given to any one particular external source, with a series of citations typically used to bolster a position rather than to suggest that any one external source had a determinative impact. Although at times akin to the wearing of a ‘belt with suspenders’, the liberality of the judicial approach suggests an openness to legal pluralism that extends well beyond the coexistence in Canada of the common law and civil law traditions; however, it is also an approach that at no time sacrifices the national voice.

On the use of comparative law, Canada’s appellate courts have exhibited a willingness to cite persuasive decisions of other high courts, whether or not the principles or lessons embraced come from a court with close legal-cultural ties. In the early days of Charter jurisprudence, the decisions of the U.S. Supreme Court were often cited, notwithstanding clear differences between the Charter and the American Bill of Rights, but the courts also continued to make reference to the decisions of the Judicial Committee of the Privy Council. Since then, one can find citations to decisions from a variety of jurisdictions, including Australia, France, India, Israel, New Zealand, and the United Kingdom. Canadian courts have also found interpretive assistance in the recommendations of the former European Commission on Human Rights and the judgments of the European Court of Human Rights, with the latter treated as if it were a European constitutional court. Indeed, European Convention jurisprudence is viewed, in essence, as a source of comparative constitutional law, rather than a source of international human rights jurisprudence.

As for Canada’s own international obligations, the treaties to which Canada is a party, as well as their interpretation by international bodies, are considered a ‘relevant (p. 634) and persuasive’ source for Charter interpretation.87 However, the judicial use of these sources is more in the nature of comparative law, or foreign law, with the material to be considered ‘in much the same way that … decisions of the courts of other jurisdictions are relevant and may be persuasive’.88 Canadian courts are not obliged to consider the views of the international supervisory bodies responsible for monitoring Canada’s treaty performance,89 unlike in Britain and Ireland, where the courts must ‘take into account’ the decisions of the European supervisory bodies, whether judicial or recommendatory.90 In South Africa, a court ‘must’ consider international law and ‘may’ consider foreign law.91 The eclecticism of the Canadian approach has, however, led to the consideration of a variety of ‘relevant and persuasive’ sources, including treaties to which Canada is not a party. It has also led to the judicial consideration of declarations, interpretive guidelines, and other non-binding texts, a phenomenon that is often praised as being progressive in nature.92 Indeed, rarely does a Canadian judge draw a distinction between a binding and non-binding text, preferring instead to group all international materials together as possibly persuasive. The downside of this approach is that it accords no weight to a government’s decision to become bound, or not, to perform a treaty obligation in good faith.

Canadian courts have, however, given short shrift to the use of the historical record as an external interpretive aid to determine legislative intent. One cannot, for example, argue with any success that the framers of the Charter intended the words in the text to have meanings fixed by judicial decisions available at the time of the Charter’s enactment.93 There is also little scope for the use of testimony given before Parliament concerning the intention of the framers, with the courts having rationalized that ‘the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter’.94 The parliamentary record concerning the hopes and intentions for a particular Charter provision may be admitted as evidence, but the courts have ‘consistently taken the view that they are of minimal relevance’.95

(p. 635) 6. Charter Interpretation and the Role for the Courts

The Charter has had a profound effect in Canada, with the wider historical context suggesting that its adoption was intended to encourage a strong judicial role in the protection of rights; a role the judiciary has embraced as ‘a guardian of the constitution’.96 As a result, Canada’s legal culture has moved closer to the United States, prompting greater interest in the judicial appointment process and encouraging judges to undertake a larger public engagement role. Indeed, it was the Charter’s resemblance to U.S.-style judicial review that led to its rejection 15 years later as a model for a new British bill of rights.97 Britain opted instead to combine judicial rights protection with continuing respect for parliamentary supremacy by denying courts the power to invalidate primary legislation. Notwithstanding the Charter’s ‘notwithstanding clause’,98 and the intended general nature of its limitations provision, it is the power to invalidate the output of the legislature that underlines the Charter’s impact. It is also a power that has led to much academic writing, as well as judicial discussion, on the question of whether the judiciary really has the last word, or whether a decision striking down a law as non-Charter compliant initiates a ‘dialogue’ between the legislature and the courts, permitting space for the legislature to make a response.99

How a court should respond to these ‘second-look’ cases is a difficult task, but it remains the work of the courts to ‘find’ the purpose of a Charter right, to give it a generous and expansive interpretation, and to evaluate the reasonableness of any government limitations. Charter interpretation must never be a mechanical exercise, and it does require care. At base is the need for the recognition of balance, both within the very structure of the Charter and between the judiciary and the legislature in determining the boundaries of their institutional roles. Situations of inequality and vulnerability, and situations falling directly within the expertise of a judge, such as the fairness of a trial, are likely to fall on the judicial side of that boundary.

Here, however, the approach of others with a ‘living’ instrument may also be instructive, with European jurisprudence suggesting that the limits are reached if an evolutive approach leads to the creation of a new right that was not included at the outset within (p. 636) the text, especially if deliberately so,100 being an approach that admittedly requires more openness to the historical record than present in Canada. As for the interpretation of rights within the text, European jurisprudence suggests that the limits of a ‘living instrument’ are reached when there is an absence of consensus among European states as to present-day conditions.101 Although it is a doctrine developed by an international court responsible for supervising a culturally diverse range of member-states, Canadian courts have, at times, made implicit use of this approach by ‘taking note of factual developments in Canada and in relevant foreign jurisdictions’, both in law and in public opinion.102 A new consensus, whether domestic or international, may also justify the overturning of a prior consensus;103 with this approach encapsulated in Canada as a ‘change in circumstances or evidence that fundamentally shifts the parameters of the debate’.104

7. Conclusion

Charter interpretation is inevitably a matter of interpreting text, purpose, and context, often with some assistance gained from a review of developments elsewhere, but always with a view to ‘developing a jurisprudence that is truly Canadian in scope, sensibility and outlook’.105 Over the years, the courts have embraced several interpretive techniques designed to ensure a large and liberal interpretation for the Charter’s guarantees. There remains, however, the ever-present need for some ‘give and take’ in the balancing of rights protection with reasonable limitation, with the desire for a progressive approach, and the question of who shall determine that a Charter guarantee no longer accords with present-day realities, likely to be the area of future challenge for the balance achieved between the courts and the legislature as to their institutional roles.

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                                                                Reference Re Same-Sex Marriage 2004 SCC 79, [2004] 3 SCR 698Find this resource:

                                                                  Saskatchewan Federation of Labour v Saskatchewan 2015 SCC 4, [2015] 1 SCR 245Find this resource:

                                                                    Tyrer v United Kingdom, App No 5856/72, Ser A No 26, (1979–1980) 2 EHRR 1Find this resource:

                                                                      Notes:

                                                                      (*) Professor of Law, Faculty of Law, University of Alberta.

                                                                      (1) Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c 11.

                                                                      (2) Indeed, it has been described by the Chief Justice of Canada as ‘a made in Canada document’ that ‘truly reflects the ethos of Canada’: Beverley McLachlin, ‘Defining Moments: The Canadian Constitution’, The Dickson Lecture, Ottawa 2014 http://www.scc-csc.ca/court-cour/judges-juges/spe-dis/bm-2014-02-13-eng.aspx.

                                                                      (3) On the rise of ‘constitutional nationalism’ prior to 1982, see Eric M Adams, ‘Constitutional Nationalism: Politics, Law, and Culture on the Road to Patriation’ in Lois Harder and Steve Patten (eds) Patriation and Its Consequences: Constitution Making in Canada (UBC Press, 2015) 49–71.

                                                                      (4) See, for example, the Canadian Human Rights Act, RSC 1985, c H-6, first enacted in 1977. The first ‘human rights code’ to consolidate various anti-discrimination provisions into one Act was adopted by Ontario in 1962.

                                                                      (5) Speaking extra-judicially, the Chief Justice of Canada has described equality as ‘a value that was to become central to the nation’s conception of itself’: McLachlin, ‘Defining Moments’, above (n 2).

                                                                      (6) See, for example, New Brunswick (Human Rights Commission) v Potash Corporation of Saskatchewan Inc 2008 SCC 45, [2008] 2 SCR 604 [19] per Abella J, and more robustly [65–70] per McLachlin CJC.

                                                                      (7) SC 1960 c 44, now RSC 1985 App III. This Act was preceded by an earlier effort of provincial application: Saskatchewan Bill of Rights Act, SS 1947 c 35.

                                                                      (8) EA Driedger, ‘The Meaning and Effect of the Canadian Bill of Rights: A Draftsman’s Viewpoint’ (1997) 9 Ottawa L Rev 303, 303. See also Brian Dickson, ‘The Canadian Charter of Rights and Freedoms: Context and Evolution’ (2013) 61 Sup Ct L Rev (2d) 3, 8–9.

                                                                      (9) The Bill of Rights 1688 (UK), c 2; 1 Will & Mar Sess 2. The Act received Royal Assent on 16 December 1689.

                                                                      (10) Human Rights Act, 1998 (UK), c 42, giving domestic legal effect to the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221, ETS No 5, in force 3 September 1953 (known as the ‘European Convention on Human Rights’ or ‘ECHR’), which for Britain ‘as a European nation … represents our bill of rights’: Brown v Stott (Procurator Fiscal, Dunfermline) [2000] UKPC D3, [2003] 1 AC 681, 706–707 per Lord Steyn. This Act may in the future be replaced with what is often termed a ‘British Bill of Rights’.

                                                                      (11) U.S. Constitution, amend. I–X.

                                                                      (12) Canadian Charter of Rights and Freedoms, above (n 1), s 32(1).

                                                                      (13) Constitution Act, 1982, above (n 1), s 52(1).

                                                                      (14) Ibid.

                                                                      (15) Hogan v R [1975] 2 SCR 574, 597–598 per Laskin J (as he then was) in dissent. For post-Charter recognition, see Singh v Minister of Employment and Immigration [1985] 1 SCR 177 [83] per Beetz J.

                                                                      (16) GA Res 217A(III), UN GAOR, 3rd Sess, Part 1 at 71–77, UN Doc A/810 (1948). Mention is often made in Canada of the role played by a Canadian lawyer in assisting with the Declaration’s drafting. See further John P Humphrey, Human Rights and the United Nations: A Great Adventure (Transnational, 1984).

                                                                      (17) The Declaration was also a model for the Canadian Bill of Rights and the Quebec Charter of Human Rights and Freedoms RSQ c C-12, adopted in 1975. See further William A Schabas, ‘Canada and the Adoption of the Universal Declaration of Human Rights’ (1998) 43 McGill LJ 403, 405–406.

                                                                      (18) Schenck v. United States 249 U.S. 47, 52 (1919).

                                                                      (19) Article 29(2) of the Declaration provides that: ‘In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society’.

                                                                      (20) But see Peter W Hogg, Constitutional Law of Canada (5th edn supplemented Carswell, 2015) s 38.1 stating that section 1 reflects the influence of the ECHR and the ICCPR. In Britain, the qualified approach to rights recognition is considered ‘the direct descendant of the Universal Declaration of Human Rights which in Art. 29 expressly recognized the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others’: Brown v Stott above (n 10), 707 per Lord Steyn.

                                                                      (21) 16 December 1966, 999 UNTS 171, Can TS 1976 No 47, in force 23 March 1976, in force for Canada by accession 19 August 1976.

                                                                      (22) The consequence of a general limitations clause is the suggestion made in Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1, (2002) 1 SCR 3 [78] that an exception to the absolute prohibition on deportation to face torture can arise in Canadian law as a consequence of the balancing process mandated by the Charter. Some find comfort in the Court’s reference to the ‘exceptional’ nature of this ‘discretion to deport to torture’, but in more tailored instruments, the right to be free from torture has no exceptions.

                                                                      (23) Article 12 of the ICCPR above (n 21), for example, has been acknowledged as the inspiration for section 6(1) of the Charter: Divito v Canada (Public Safety and Emergency Preparedness) 2013 SCC 47, [2013] 3 SCR 157 [24].

                                                                      (24) As acknowledged by the former Assistant Deputy Minister of Justice and active participant in the Charter’s drafting: Barry L Strayer, ‘The Evolution of the Charter’ in Harder and Patten, above (n 3), 82–84. See also Barry L Strayer, Canada’s Constitutional Revolution (University of Alberta Press, 2013), 252–256. On the drafting of the content of the clause, see Adam M Dodek, ‘Where Did (Section) 1 Come From?’ (2010) 27 NJCL 77–91.

                                                                      (25) The practice continues within the UN when drafting declaratory instruments to place the general limitations clause after the agreed listing of rights. See, for example, the United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/61/49 (vol III) at 15–25 (2007), art 46(2).

                                                                      (26) As recognized with respect to section 23 on minority language educational rights in Mahe v Alberta [1990] 1 SCR 342, 369. Section 7 concerning ‘the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice’ is another example.

                                                                      (27) Canadian Charter of Rights and Freedoms, above (n 1), s 33. Commonly known as the ‘notwithstanding clause’, section 33 permits the federal Parliament and provincial Legislatures to override many but not all Charter provisions on a temporary five-year basis, with the possibility of renewal. For its predecessor, see Canadian Bill of Rights, above (n 7), s 2. See the chapter by Janet Hiebert in this Handbook.

                                                                      (28) Gosselin v Quebec (AG) 2002 SCC 84, [2002] 4 SCR 429, [214], [336].

                                                                      (29) Law Society of Upper Canada v Skapinker [1984] 1 SCR 357, 370 and 376.

                                                                      (30) Dagenais v Canadian Broadcasting Corporation [1994] 3 SCR 835, 877.

                                                                      (31) Trinity Western University v British Columbia College of Teachers 2001 SCC 31, [2001] 1 SCR 772 [31].

                                                                      (32) A point made by Hogg, Constitutional Law of Canada above (n 20), s 36.8(e), who goes on to explain at s 36.8(f) that ‘differences in the vulnerability of the right to legislative abridgement … does not imply’ that one Charter right must take priority over another when they come into conflict.

                                                                      (33) Constitution Act, 1982 above (n 1), s 57. See further RM Beaupré, ‘Vers l’Interpretation d’une Constitution Bilingue’ (1984) 25 C de D 939–958; JP McEvoy, ‘The Charter as a Bilingual Instrument’ (1986) 64 Can Bar Rev 153–171. There is, however, some truth to the criticism that scholars, if not others, tend to work within their language silos. See further Robert Leckey, ‘Prescribed by Law/Une Règle de Droit’ (2007) 45 Osgoode Hall LJ 571–620.

                                                                      (34) See, for example, R v Collins [1987] 1 SCR 265, 287, where ‘the less onerous’ French text of section 24(2) was preferred because it ‘better protected’ the right at issue.

                                                                      (35) See further Beverley Baines, ‘Section 28 of the Canadian Charter of Rights and Freedoms: A Purposive Interpretation’ (2005) 17 CJWL 45–70.

                                                                      (36) Elmer A Driedger ‘The Charter of Rights and Freedoms’ (1982) 14 Ottawa L Rev 366, 373–374.

                                                                      (37) See, for example, the mention of section 27 in the hate speech case of R v Keegstra [1990] 3 SCR 697, 757 per Dickson CJC. For a critique of the judicial approach, see Natasha Bakht, ‘Reinvigorating Section 27: An Intersectional Approach’ (2009) 6 J L & Equality 135–161.

                                                                      (38) R v NS 2012 SCC 72, [2012] 3 SCR 726, although only Lebel J referred expressly to section 27, which he balanced against Canadian values in relation to open courts and public trials in securing trial fairness [72–78]. See also Ayelet Shachar, ‘Interpretation Sections (27 and 28) of the Canadian Charter’ (2013) 61 Sup Ct L Rev (2d) 147.

                                                                      (39) Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 93.

                                                                      (40) Adler v Ontario [1996] 3 SCR 609.

                                                                      (41) Waldman v Canada, Merits, Communication No 694/1996, UN Doc CCPR/C/67/D/694/1996, (1999) 7 IHRR 368 (UNHRC).

                                                                      (42) Hunter v Southam [1984] 2 SCR 145, 155.

                                                                      (43) Ibid.

                                                                      (44) Ibid.

                                                                      (45) Edwards v Attorney-General for Canada [1930] AC 124, 136 per Lord Sankey LC. See also Attorney General of Ontario v Attorney General of Canada [1947] AC 127, 154 per Lord Jowitt LC (‘it is … irrelevant that the question is one that might have seemed unreal at the date of the British North America Act. To such an organic statute the flexible interpretation must be given that which changing circumstances require… .’).

                                                                      (46) Reference Re Same-Sex Marriage 2004 SCC 79, [2004] 3 SCR 698 [22].

                                                                      (47) William H Rehnquist, ‘The Notion of a Living Constitution’ (1976) 54:4 Texas L Rev 693–706, 693; revised and published in (2006) 29:2 Harv J L & Pub Pol’y 401–415.

                                                                      (48) Referring to a narrow interpretive approach that is associated with the Canadian Bill of Rights: Reference Re Public Service Employee Relations Act (Alta) [1987] 1 SCR 313, 338 per Dickson J dissenting.

                                                                      (49) See further Vicki C Jackson, ‘Constitutions as “Living Trees”? Comparative Constitutional Law and Interpretive Metaphors’ (2006) 75 Fordham Law Review 921–960.

                                                                      (50) Tyrer v United Kingdom, App No 5856/72, Ser A No 26, (1979–1980) 2 EHRR 1 [31].

                                                                      (51) See further George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in Andreas Føllesdal, Birgit Peters and Geir Ulfstein (eds) Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge University Press, 2013), 106–141.

                                                                      (52) Judge v Canada, Merits, Communication No 829/1998, UN Doc CCPR/C/78/D/829/1998, (2003) 11 IHRR 25 (UNHRC) [10.3].

                                                                      (53) See, for example, the contributions by Justices Ian Binnie and Antonin Scalia in Grant Huscroft and Ian Brodie (eds), Constitutionalism in the Charter Era (LexisNexis, 2004).

                                                                      (54) See further Grant Huscroft and Bradley W Miller (eds), The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge University Press, 2011).

                                                                      (55) Attorney General of Quebec v Blaikie [1979] 2 SCR 1016, 1029.

                                                                      (56) A comparison recognized by the Chief Justice of Manitoba in the 1950s: Reference re Validity of Section 198 of Railway Act, RSC 1952, c 234 (1956) 2 DLR (2d) 93, 108, reversed on other grounds [1958] SCR 285 (‘Constitutions change, as does the common law, and develop with times and circumstances, growth of constitutional and political conventions, and national and international evolution and requirements’).

                                                                      (57) Hunter v Southam above (n 42), 157.

                                                                      (58) Ibid.

                                                                      (59) R v Big M Drug Mart Ltd [1985] 1 SCR 295, 344.

                                                                      (60) Dunmore v Ontario (AG) 2001 SCC 94, [2001] 3 SCR 1016 [30]; Ontario (AG) v Fraser 2011 SCC 20, [2011] 2 SCR 3 [32 and 63–66].

                                                                      (61) Dunmore ibid, [13].

                                                                      (62) Keegstra above (n 37), 837 per McLachlin J dissenting.

                                                                      (63) Reference re Same-Sex Marriage above (n 46), [23]; Caron v Alberta 2015 SCC 56, [2015] 3 SCR 511 [35]. It would hardly be otherwise since ordinary statutes are given a ‘fair, large and liberal’ construction to ensure that they attain their remedial goals. See, for example, Interpretation Act, RSC 1985, c I-21, s 12.

                                                                      (64) Hunter v Southam above (n 42), 155.

                                                                      (65) Big M Drug Mart above (n 59), 331–334.

                                                                      (66) As noted by Wilson J in Big M Drug Mart ibid, 357.

                                                                      (67) A ‘bright line between freedoms and rights seems to us impossible to maintain … The freedom to do a thing … implies a right to do it’: Ontario (AG) v Fraser above (n 60), [67].

                                                                      (68) Compare Delisle v Canada [1999] 2 SCR 989 [33] with Dunmore above (n 60), [19–29].

                                                                      (69) See, for example, New Brunswick (Minister of Health and Community Services) v G(J) [1999] 3 SCR 46 requiring the provision of state-funded counsel in child custody proceedings; a holding reminiscent of the European case of Airey v Ireland No 6289/73, Ser A No 32, (1980) 2 EHRR 305.

                                                                      (70) Gosselin above (n 28), [82–83]. See also Strayer, ‘The Evolution of the Charter’ above (n 24), 78–79, indicating that the Charter’s drafters did not consider Canada’s political culture to be ready for the inclusion of economic rights, particularly those imposing positive obligations.

                                                                      (71) Health Services and Support—Facilities Subsector Bargaining Assn v British Columbia 2007 SCC 27, [2007] 2 SCR 391. See also Ontario (AG) v Fraser above (n 60), [34–43].

                                                                      (72) Saskatchewan Federation of Labour v Saskatchewan 2015 SCC 4, 2015 1 SCR 245.

                                                                      (73) Reference Re Public Service Employee Relations Act (Alta) above (n 48); Public Service Alliance of Canada v Canada [1987] 1 SCR 424; Retail, Wholesale and Department Store Union v Saskatchewan [1987] 1 SCR 460.

                                                                      (74) See Stanley A de Smith, The New Commonwealth and Its Constitutions (Stevens & Sons 1964), 194, cited without attribution in Minister of Home Affairs v Fisher [1980] AC 319, 328, but later with attribution in Matthew v The State (Trinidad and Tobago) [2004] UKPC 33, [2005] 1 AC 433 [34] and Mist v The Queen [2005] NZSC 77 [45].

                                                                      (75) Hunter v Southam above (n 42), 156 per Dickson J citing Fisher ibid.

                                                                      (76) Big M Drug Mart above (n 59), 344 per Dickson J (Chief Justice at the date of the judgment).

                                                                      (77) Peter W Hogg, ‘Interpreting the Charter of Rights: Generosity and Justification’ (1990) 28 Osgoode Hall LJ 817–838.

                                                                      (78) R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [17], citing Hogg, Constitutional Law of Canada above (n 20), s 36.8(b)–(c).

                                                                      (79) Indeed, the dissent in Saskatchewan Federation of Labour above (n 72), [114], suggests that the majority has adopted an analysis that ‘overshoots the actual purpose of the right or freedom’.

                                                                      (80) Edmonton Journal v Alberta (AG) [1989] 2 SCR 1326, 1355–1356.

                                                                      (81) Rocket v Royal College of Dental Surgeons of Ontario [1990] 2 SCR 232, 246–247.

                                                                      (82) R v Jarvis 2002 SCC 73, [2002] 3 SCR 757 [67].

                                                                      (83) R v Levogiannis [1993] 4 SCR 475, 483, concerning the use of screens to allow a young complainant to testify against an accused.

                                                                      (84) R v Seaboyer; R v Gayme [1991] 2 SCR 577, 647 per L’Heureux-Dubé J dissenting.

                                                                      (85) R v L (DO) [1993] 4 SCR 419, 428–429 per Lamer J, as compared with 438–442 per L’Heureux-Dubé J, concerning the evidentiary use of videotaped interviews with young complainants.

                                                                      (86) R v Lucas [1998] 1 SCR 439, 486 per McLachlin J dissenting.

                                                                      (87) Reference Re Public Service Employee Relations Act above (n 48), 348–349 per Dickson CJC dissenting, but see Slaight Communications Inc v Davidson [1989] 1 SCR 1038, 1056–1057 per Dickson CJC.

                                                                      (88) Ibid, 348.

                                                                      (89) Resulting in a lack of domestic judicial engagement with a notable series of international cases concerning Canada, extradition, and the death penalty: see Joanna Harrington, ‘The Absent Dialogue: Extradition and the International Covenant on Civil and Political Rights’ (2006) 32 Queen’s LJ 82–134.

                                                                      (90) Human Rights Act above (n 10), s 2; European Convention on Human Rights Act 2003 (Irl), No 20 of 2003, s 4.

                                                                      (91) Constitution of the Republic of South Africa 1996 s 39(1).

                                                                      (92) A non-binding text may, however, be ‘more progressive’ precisely because its negotiators knew it would be non-binding, with many years of further negotiation often required to transform a declaration into a treaty text.

                                                                      (93) R v Therens [1985] 1 SCR 613, 638 per Le Dain J.

                                                                      (94) Re BC Motor Vehicle Act [1985] 2 SCR 486, 506–507 per Lamer J.

                                                                      (95) Mahe v Alberta above (n 26), 369.

                                                                      (96) Hunter v Southam above (n 42), 155 per Dickson J. It has also been judicially mentioned that the role was placed upon them by the political actors of the day: Re Motor Vehicle Act above (n 94), 497.

                                                                      (97) Rights Brought Home: The Human Rights Bill (Cm 3782 1997) [2.10–2.15]. See also Francesca Klug, Values for a Godless Age: The Story of the United Kingdom’s New Bill of Rights (Penguin Books, 2000) 165–166.

                                                                      (98) A political-legal culture that places greater confidence in judges than politicians has made it very difficult for legislatures to make use of the override provided by section 33.

                                                                      (99) See further Peter W Hogg, Alison A Bushell Thornton and Wade K Wright, ‘Charter Dialogue Revisited or “Much Ado about Metaphors” ’ (2007) 45 Osgoode Hall LJ 1–65.

                                                                      (100) Johnston and Others v Ireland, App No 9697/82, Ser A No 112, (1987) 9 EHRR 203 [53] concerning a right to divorce. The intentional exclusion of property rights from the Charter would be a Canadian parallel: Irwin Toy v Quebec (Attorney General) [1989] 1 SCR 927, 1003–1004.

                                                                      (101) See, among other cases, Marckx v Belgium, App No 6833/74, Ser A No 31, (1980) 2 EHRR 330 [41] concerning equality between legitimate and illegitimate children.

                                                                      (102) See, for example, Burns v United States 2001 SCC 7, [2001] 1 SCR 283 [144], in effect overturning a past precedent with reference to prevailing views within Canada, and internationally, concerning the death penalty.

                                                                      (103) See Goodwin v United Kingdom, App No 28957/95, ECHR 2002-VI, (2002) 35 EHRR 447 [79-85] (Grand Chamber), concerning the legal recognition of the sexual identity of post-operative transsexuals.

                                                                      (104) Carter v Canada (AG) 2015 SCC 5, [2015] 1 SCR 331 [6–10 and 42–47, esp 44], concerning physician-assisted dying; Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 [42], concerning prostitution.

                                                                      (105) Dickson, above (n 8), 20.