Protecting Rights and Promoting Democracy: Judicial Review Under Section 1 of the Charter

34 Osgoode Hall Law Journal 4 (1997)

20 Pages Posted: 26 Aug 2013

See all articles by Martha Jackman

Martha Jackman

University of Ottawa - Common Law Section

Date Written: 1997

Abstract

The author argues that, under section 1 of the Charter, the courts must weigh carefully the democratic potential of rights guarantees against the democratic quality of government decisions which undermine those rights. The article points to the Egan and Eldridge cases as examples of decisions in which the willingness to uphold rights violations under section 1, in the name of deference to the legislature, actually undermines democratic values. The article examines the RJR-MacDonald decision as a starting point for a section 1 analysis which identifies the characteristics of government decision making that must be present if rights violations are to be justified under section 1, understood in terms of the Charter's combined objectives of protecting rights and of promoting democracy.

Keywords: Canada, Canadian, law, legal, Charter, rights, section 1, Eldridge, Egan, democratic, values, democracy, democratic, government, constitution

Suggested Citation

Jackman, Martha, Protecting Rights and Promoting Democracy: Judicial Review Under Section 1 of the Charter (1997). 34 Osgoode Hall Law Journal 4 (1997). Available at SSRN: https://ssrn.com/abstract=2311796

Martha Jackman (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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