Canada's Charter of Rights: Paradigm Lost?

Review of Constitutional Studiescome under the rubric of "legality" and "proportionality."These tests require the state to justify any encroachment on guaranteed rights as prescribed by law, suitable, necessary and lacking excess.Some members of the Court, however, opposed these developments.They saw in the postwar model an unwarranted expansion ofjudicial power at the expense of legislatures and the executive, and introduced a more relaxed and deferential mode of Charter review.The Charter was not to fetter the legislature when it worked as mediator, resolving competing claims asserted primarily by groups, often including the claims of vulnerable people, for limited resources in a complex and ultimately unknowable world.Rigorous constitutional scrutiny to preserve traditional ideas of justice was acceptable only in those instances where an individual asserted rights against the state, the paradigm situation being the criminal process.But even in this context, deference often seemed appropriate.This deferential approach, in which rights enjoy no distinctive, protected status, now vies for dominance with the Court's original, postwar approach.In this paper, I develop a critique of the deferential approach to judicial review under the Charter.First, it disregards the prolonged, well-informed and remarkably participatory debate that led to the Charter's adoption.Particularly it disregards its fully and publicly articulated remedial purpose: to withdraw certain interests, denominated as constitutional rights and freedoms, from the give and take of the ordinary political process.Second, it fails to take seriously the written product of that debate.The deferential approach in effect creates a hierarchy of rights lacking any discernible basis in the text and ignores the differentiation between rights that the text does make.It also disregards the carefully chosen terms of the limitation formulation, drafted in publicly televised, parliamentary proceedings.That text was expressly designed to include the technical legal language of the postwar instruments in order to deliver the effective regime of rights-protection desired by Canadians generally and, in particular, sought by those to whom the previous lack of rights-protection mattered most.Disregard of remedial purposes and text leads to the third failing: insensitivity to the Charter's reconstruction of institutional roles.The advocates of deference cede the primacy of guaranteed rights and freedoms to ordinary politics on the ground that the representative, accountable legislatures must take responsibility for the political choices required.In effect, the polity reverts to the legislative policy-making role that the Charter was designed to redesign.This response to the standard critiques againstjudicial review ignores the fact that the distinctive features of the Charter, notably the postwar limitation clause and the made-in-Canada legislative override or notwithstanding clause, restructure 2002 Revue d'etudes constitutionnelles

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