Whose Right is it Anyway? Adjudicating Charter Rights in the Context of Multiple Rightsholders
Supreme Court Law Review (2020)
Osgoode Constitutional Cases Conference (2019)
22 Pages Posted: 1 Oct 2019 Last revised: 28 Aug 2020
Date Written: August 1, 2019
This article considers how courts should approach contexts of equal and overlapping rights claims under the Charter, using R v Reeves as a case study. While such claims might initially appear novel, they seem more familiar when we recast them not as “overlapping” rights claims (as the Crown described them in Reeves) but rather as competing rights claims. As I will argue, this reframing directs us to our ordinary tool for balancing Charter claims against other competing constitutional values including “public safety, order, health, or morals or the fundamental rights and freedoms of others” — namely, proportionality. In addition, this article explains that this way of understanding the problem and approaching the solution fits with compelling accounts of what justifies the state’s exercise of public authority and the role constitutional rights play in demarcating the limits of that authority.
Keywords: Criminal Law, Charter of Rights and Freedoms, Constitutional Rights, State Authority
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