The Original Conception of Section 1 and its Demise: A Comment on Irwin Toy V. A-G of Quebec
McGill Law Journal, Vol. 35, pp. 253-277, 1989
26 Pages Posted: 8 Sep 2010
Date Written: 1989
The author submits that the logic and purpose of the Canadian Charter of Rights and Freedom, as it was originally conceived, demand that the substantive rights be given a broad and literal interpretation with limitations imposed exclusively under section 1. This distinction between breach and justification must be maintained to preserve the Charter's integrity. The author suggests that the Supreme Court of Canada's decision in Irwin Toy will only perpetuate the confusion surrounding Charter interpretation. The Court again failed to articulate a concrete conception of section 1 review, and, in obiter dicta, noted that forms of expressive activity having physical consequences were not expression under s. 2(b). The incorporation of justificatory criteria in defining the scope of the right doctrinalizes the choices which the Court would otherwise have to make openly under section 1. The author concludes that only a return to the original conception of the Charter can salvage its uniquely Canadian balance between individual and collective values. Such a reinterpretation entails the reform of the rigid Oakes test to allow for diverse standards of justification.
Keywords: Canadian Charter, interpretation, s. 1, s. 2(b), Irwin Toy, balance between individual and collective values
JEL Classification: K39
Suggested Citation: Suggested Citation