The Canadian Approach to Fundamental Rights Disputes: Methodological Exceptionalism in Constitutional Interpretation and Proportionality Reasoning

II Constitutional Interpretation in CanadaConstitutional interpretation is inevitable when courts decide on fundamental rights disputes.The fundamental right affected in the particular legal dispute is codified in the constitution, as well as the limitation clause 2 which prescribes the possible purpose and extent of the limitation of fundamental rights.The constitution therefore needs to be interpreted in order to identify whether a particular fundamental right has been infringed and to examine whether the limitation in question is acceptable or not.Proportionality analysis offers a framework for this examination, as well as for the reasoning of the court, while constitutional interpretation is the starting point and context of this operation.In the case of Canada, this assessment refers in particular to the interpretation of the Canadian Charter of Fundamental Rights and Freedoms (Charter) 3 , 'a nation-building instrument' 4 .However, the origin of the most influential methods of constitutional interpretation used by Canadian courts dates back to times when constitutional adjudication -in the absence of a codified charter of fundamental rights -was based on other parts of the constitution.The challenges related to constitutional interpretation are well-known.According to the summary of Jeffrey Goldsworthy, 'the provisions of national constitutions, like other laws, are often ambiguous, vague, contradictory, insufficiently explicit, or even silent as to constitutional disputes that judges must decide' .Moreover, in the case of constitutions (compared to other laws) 'the stakes are much higher' 5 , when it comes to the responsibility of the interpreter.Due to the fact that there are many justifications and classifications of the methods of constitutional interpretation, both in Constitutional Law scholarship and in the practice of courts, it is useless to search for 'the right method' of interpretation.The benefit of the debates between the proponents of the different methods 6 is not the possible hegemonic position of a particular approach, but rather a better understanding of the particularities of the concurring methods -therefore offering a set of more sophisticated methodological tools for judges.Particular methods of interpretation in most of the cases are favoured by individual judges, based on the legal culture from which they come and their social experiences or n ELTE LAW JOURNAL • ZOLTÁN POZSÁR-SZENTMIKLÓSY n 66 2 This is not the case of implicit limitation clauses.However, the meaning of implicit limitation clauses can be also derived from their context, the text of the constitution.Aharon Barak uses the term of 'implied limitation clauses' .

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