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The Dutiful Conscript: An Originalist View of Justice Wilson's Conception of Charter Rights and Their Limits

Supreme Court Law Review, Second Series, Vol. 41, p. 331, 2008

40 Pages Posted: 31 Oct 2008 Last revised: 26 Jun 2013

Adam M. Dodek

University of Ottawa - Common Law Section

Date Written: October 29, 2008

Abstract

During her relatively short time on the Supreme Court of Canada (1982-1991), Justice Bertha Wilson constructed an independent and distinct approach to the relationship between rights and their limits under the Canadian Charter of Rights and Freedoms (the "Charter"). To Justice Wilson, judicial review was a duty imposed on the courts by the Charter through a deliberate and high-profile democratic process. Her conception of the judicial role under the Charter draws its sustenance from a strong historical claim about both the purpose and the process of rights entrenchment under the Charter. Properly understood, Justice Wilson's vision of the relationship between rights and their limits under the Charter is an originalist one - one that is based on the assertion that the legitimacy of the judicial interpretative role finds its source in the events of 1980-82 when the Charter was enacted.

This article analyzes Justice Wilson's conception of rights and limits under the Charter and demonstrates how it is anchored in a normative vision of the events of 1980-82. It then demonstrates how this originalist conception of the Charter permeated Justice Wilson's model of the relationship between rights and their limits, mostly, but not exclusively, through her section 1 jurisprudence. This part distinguishes between the multiple meanings of Oakes - the case, the framework and the test - and shows how Justice Wilson focused on the much stricter Oakes framework while her colleagues were relaxing the Oakes test. This part further shows how Justice Wilson's fidelity to the strictness of the Oakes framework translated into her staunch insistence on section 1 as the sole source of limits on rights, her fixation on onus and evidence and her understanding of the relationship between section 1 and other sections of the Charter. Finally, this article ends with a brief conclusion on the themes of constitutional duty and destiny.

Keywords: Canada Constitutional Law, Canadian Charter of Rights and Freedoms, Judicial Review, Canada, Judges, Courts, Bertha Wilson, Supreme Court of Canada, Originalism, Constitutional Interpretation

JEL Classification: K10, K19

Suggested Citation

Dodek, Adam M., The Dutiful Conscript: An Originalist View of Justice Wilson's Conception of Charter Rights and Their Limits (October 29, 2008). Supreme Court Law Review, Second Series, Vol. 41, p. 331, 2008. Available at SSRN: https://ssrn.com/abstract=1267212

Adam M. Dodek (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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