A Comment on Canadian Constitutionalism

Abstract

The adoption of the Canadian Charter of Rights and Freedoms, 1982 offered Canadians the opportunity to choose between an American and a European approach to rights protection. The Charter text demonstrates a preference for the European model. The interpretation and application of the relevant Charter provisions in a number of cases carries on that preference, as is evident in cases involving the guarantee of freedom of expression.

For the Americans, freedom of speech invokes the glory of the American Revolution and its establishment of a democratic society endorsing individual freedom as its highest aspiration. The testing ground for truth is the marketplace of ideas. For Canadians, freedom of expression is one of a group of rights that together create the fabric of freedom and democracy for a multicultural, pluralistic and tolerant society. What is paramount is not the speech right but the values that it forwards. Rights, therefore, are not merely subjective, individual entitlements. They are best understood as the crystallisation of an abstract, normative, objective order, the preservation of which falls to a vigilant judiciary mindful of the failings of the majoritarian mechanisms in the twentieth century.