Common Sense and the Charter

Supreme Court Law Review, Vol. 45, p. 3, 2009

22 Pages Posted: 15 Dec 2011

See all articles by David Schneiderman

David Schneiderman

University of Toronto - Faculty of Law

Date Written: October 7, 2009

Abstract

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

Suggested Citation

Schneiderman, David, Common Sense and the Charter (October 7, 2009). Supreme Court Law Review, Vol. 45, p. 3, 2009. Available at SSRN: https://ssrn.com/abstract=1972403

David Schneiderman (Contact Author)

University of Toronto - Faculty of Law ( email )

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Toronto, Ontario M5S 2C5
Canada
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