Dialogue and Hierarchy in Charter Interpretation: A Comment on R. V. Mills

Alberta Law Review, Vol. 38, No. 4, 2001

18 Pages Posted: 10 Jun 2010

See all articles by Jamie Cameron

Jamie Cameron

York University - Osgoode Hall Law School

Date Written: June 9, 2010

Abstract

This case comment focuses on two issues of methodology: the first concerns constitutional interpretation and the democratic process, or the dialogue issue; and the second, the relationship between Charter guarantees, or the hierarchy issue. To set the stage, an initial section provides an overview of the Stinchcombe/O'Connor/Mills trilogy, and is followed by a more detailed analysis of Mills that examines the tension between judicial and legislative decision making, before considering how Parliament and the Court altered O'Connor's model for balancing the rights of the accused and complainants. On the latter issue, though the article does not comment in detail on the mechanics of defence access to these records, some attention to particulars is necessary to show how the Court both eschewed and embraced a hierarchy among Charter entitlements. A final section returns to overriding questions of hierarchy. Beyond the substantive issue of ranking rights and interpreting s. 7 is the question of relations between institutions. There, Parliament's decision to negate O'Connor by ordinary legislation calls into question any concept of dialogue as a demonstration of mutual respect between courts and legislatures. In that regard, it is doubtful that dialogue's objective of keeping the institutional peace augurs well for constitutional rights. As the conclusion suggests, the concept is more likely to compromise entitlements and destabilize Charter jurisprudence.

Keywords: R v. Mills, Canadian Charter, s. 7, Charter Interpretation, Stinchcombe/O'Connor/Mills trilogy, judical decision making, legislative decision making

JEL Classification: K10

Suggested Citation

Cameron, Jamie, Dialogue and Hierarchy in Charter Interpretation: A Comment on R. V. Mills (June 9, 2010). Alberta Law Review, Vol. 38, No. 4, 2001 . Available at SSRN: https://ssrn.com/abstract=1622799

Jamie Cameron (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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