Common Sense and the Charter
Supreme Court Law Review, Vol. 45, p. 3, 2009
22 Pages Posted: 15 Dec 2011
Date Written: October 7, 2009
How common are resorts to ‘common sense’ in Charter decision making at the Supreme Court of Canada? It is argued that the Court’s capacity to name reality for everyone is a powerful one and so becomes a site of competition among rival conceptions of common sense. This competition over naming common sense was in operation in the Supreme Court rulings of Gosselin and Chaoulli. In the first case, the Court declared that discriminating against young people in the provision of welfare at less than subsistence levels was supported by common sense. In the second case, a dispute concerning a provincial ban on private health insurance, members of the Court acknowledged the possibility that there could be more than one version of what constitutes common sense. This had the perverse effect, however, of equating empirical evidence offered by Quebec with conjecture offered by the claimants to overturn the ban. The Court also has had recourse to common sense in the course of its proportionality inquiry under section 1. Alive to the legitimacy problems associated with resorting to common sense in order to invalidate legislation, the Court, in these cases, has preferred to rest its proportionality analysis on the seemingly more rigorous and democracy-promoting least restrictive means requirement. Common sense, in this way, serves less controversial purposes but nevertheless underscores the power of the Court to declare what is conventional wisdom for all.
Keywords: constitutional law, charter of rights, judicial review, proportionality
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