Rights in Conflict: The Dilemma of Charter Legitimacy

1987

Differences between the Charter and the American Bill of Rights might be pointed out. But the author’s aim here is not to compare the two documents; it is to open up the discussion of the Canadian Charter in a way that frees us from the dominance of American theory. The author explores a mode of thinking about the Charter’s basic structure that departs from the one tacitly informing most current thinking about the Charter, but which I think is more faithful to the text and spirit of the document and, of equal importance, to our constitutional heritage. Ultimately any theory of the Charter should be judged, not by its conformity to some pre-existing model, whether this be the American Bill of Rights or the European Convention on Human Rights, but by its ability to display the Charter as the development and extension of the best of Canadian constitutional traditions.

1991

UNBLJ

Those are my principles. I f you don't like them I have others. "-Groucho Marx * Dean and Associate Professor, Faculty of Law, University of Victoria. I am indebted to Joel Bakan and Murray Rankin for their helpful comments and suggestions, and to Claudia Chender for her invaluable research assistance. Parts of this paper derive from Andrew Petter, "Rip Van Winkle in Charterland" in R. Bazowski, ed., The Charter at Twenty (McGill-Queen's University Press, forthcoming).

NDL Rev., 2001

is a senior civil rights litigation strategist with Hill and Knowlton and an Adjunct Professor of Law at Northwestern University Law School. He graduated cur laude from the University of Minnesota Law School in 1991 and is a council member of the ABA's Section on Individual Rights. ** David Rosenberg is an Associate Professor of Law in Baruch College's Law Department. He graduated from Cornell Law School in 1991 and was the book review editor for the Cornell Law Review. The authors worked together as legal counsel for the Anti-Defamation League and participated in many of the cases discussed in this article. The authors would like to extend their gratitude to Sherri Drucker, a law student at Northwestern Law School, for the immeasurable contribution she made to this article. 1. 529 U.S. 598 (2000).

Supreme Court Law Review, 2020

This article considers how courts should approach contexts of equal and overlapping rights claims under the Charter, using R v Reeves as a case study. While such claims might initially appear novel, they seem more familiar when we recast them not as “overlapping” rights claims (as the Crown described them in Reeves) but rather as competing rights claims. As I will argue, this reframing directs us to our ordinary tool for balancing Charter claims against other competing constitutional values including “public safety, order, health, or morals or the fundamental rights and freedoms of others” — namely, proportionality. In addition, this article explains that this way of understanding the problem and approaching the solution fits with compelling accounts of what justifies the state’s exercise of public authority and the role constitutional rights play in demarcating the limits of that authority. This article was written for the 2019 Osgoode Constitutional Cases Conference.

European Review of International Studies

Osgoode Hall Law Journal, 2021

Whether the Supreme Court of Canada can and should recognize so-called “positive” rights (viz., rights that require the performance of certain actions, possibly including the provision of goods, by the government) under the Canadian Charter of Rights and Freedoms remains contentious. Binding Supreme Court precedent states that there are no positive Charter rights—at least under sections 7, 12, and 15, under which demands for positive action are most controversially raised—but positive aspects of Charter rights could be recognized in the future. Yet the circumstances under which such recognition would be appropriate remain opaque. This work suggests that the law of precedent is a helpful tool for examining when recognition of positive rights could be justified from both the institutional perspective of the Court’s internal norms and from an all-things-considered perspective. It is, at minimum, a useful framing mechanism for exploring the most difficult issues concerning the recognition of positive rights. Interestingly, application of the test for going against precedent suggests a break between when the Court could recognize positive rights according to its own norms and when doing so would be justified, all things considered. Yet, more importantly, the considerations raised by the law of precedent test also highlight a burden on future all-things-considered recognition of positive rights and demonstrate how the judiciary could avoid the potential negative consequences of their recognition.

The jurisprudential borders of the Canadian state appeared to shift in the aftermath of the landmark judgment of the Supreme Court of Canada on the constitutionality of the security certificate provisions of the Immigration and Refugee Protection Act in early 2007. Yet Charkaoui v. Canada ultimately maintained the contingency of the Charter of Rights and Freedoms, re-drawing long-standing divisions along lines of alleged risk, allegiance and origin, despite the emergence of tentative shifts in jurisprudential conceptions of state sovereignty and extra-territoriality. Where previous national security cases involving constitutional rights claims by non-citizens were predicated on a conceptualization of state sovereignty as the right to exclude from territory, reading Charkaoui in the context of four subsequent cases involving the role of Canadian state actors abroad gives rise to the prospect of the Charter operating to delineate and maintain the limits of state sovereignty within and beyond national borders. While the Charter may accompany the extended reach of the Canadian state in some of its guises, it provides only a minimal constraint on the actions of its agents, reinscribing rather than challenging sovereignty. Accordingly, this article argues that the ‘sovereign Charter’ represents a key moment in the evolution of the Canadian state’s national security, immigration and foreign policy strategies, serving to harden the boundaries of the nation, from within and without. By theorizing the doctrinal rules related to the extra-territorial application of the Charter, this article concludes that rights, as reflected in Charkaoui and subsequent caselaw, continue to offer only a limited mode of resistance against sovereign power. Beyond both immigration law’s historical preoccupation with race and the contemporary focus on the ‘war on terror’, the very notion of rights functions as a discursive and aspirational marker of sovereignty.

2011

There is a tension between the idea of popular sovereignty and our understanding that basic constitutional rights and liberties have a normative authority which is independent from the results of democratic decision-making procedures. On the one hand there is the claim that the content of political justice, at least as far as the basic liberties are concerned, is to be fixed solely by substantive moral and political argument, while on the other there is the claim that it is the people who determine the specific scheme of basic liberties that they live under. The apparent tension between the two claims can be resolved by introducing, firstly, a distinction between the concept of justice and the concept of legitimacy and, secondly, between proto-rights and constitutional rights. Unlike constitutional rights, proto-rights are moral, not legal, rights, and they are less specific than constitutional rights: one set of proto-rights allows for various schemes of legal constitutional rights. Proto-rights are part of the principles of justice and can be established only by substantive argument while constitutional rights have to be established by the procedures of democratic legitimization, and, therefore, they are a result of the exercise of popular sovereignty. The correlated distinctions between justice and legitimacy, and between proto-rights and constitutional rights, allow us to specify the scope of the two claims and, hence, to affirm both simultaneously. The philosophical and legal relevance of the distinctions made is elucidated by a brief discussion of the constitutional rights of freedom of speech in the US and Germany.