Language and Judgment’s Reach: Reflecting on Limits on Rights

Robert Leckey

McGill University - Faculty of Law

October 30, 2009

University of Toronto Law Journal, Vol. 60, pp. 1031-44, 2010

This is a review essay on The Limitation of Charter Rights: Critical Essays on R. v. Oakes (Luc Tremblay and Grégoire Webber eds., 2009), a collection celebrating the 20th anniversary of the Supreme Court of Canada's leading judgment on proportionality and limits on rights guaranteed by the Canadian Charter of Rights and Freedoms. The essay reflects on language in Canadian constitutional law, both the importance of the words used in talk about rights and the challenges of bilingualism. Sustaining scholarly reflection and dialogue in English and French, based on the equally authentic English and French versions of constitutional sources, remains difficult. The essay also reflects on the disjuncture between the legislative judgment in Oakes - the Court set out, prospectively, a test of general application for constitutional proportionality analysis - and the traditional conception of the judge's role in the common law tradition. Fidelity to that tradition would have inclined the judges, more modestly, to allow rules to emerge from the resolution of concrete disputes over time. Peculiarly, the question as to how judges, formed in the common law tradition, might interpret and apply a written constitution seems not to figure among the concerns of those who declare themselves the standard bearers of the so-called common law constitution.

Number of Pages in PDF File: 14

Keywords: proportionality, Oakes, Canadian Charter, judgment, language, common law method

JEL Classification: K3, K39

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Date posted: November 1, 2009 ; Last revised: November 12, 2010

Suggested Citation

Leckey, Robert, Language and Judgment’s Reach: Reflecting on Limits on Rights (October 30, 2009). University of Toronto Law Journal, Vol. 60, pp. 1031-44, 2010. Available at SSRN: https://ssrn.com/abstract=1496884

Contact Information

Robert Leckey (Contact Author)
McGill University - Faculty of Law ( email )
3644 Peel Street
Montreal H3A 1W9, Quebec
514-398-4148 (Phone)
514-398-4659 (Fax)
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