Adam M. Dodek (University of Ottawa – Faculty of Law) has posted The Dutiful Conscript: An Originalist View of Justice Wilson’s Conception of Charter Rights and Their Limits
(Supreme Court Law Review, No. 2, p. 331, 2008) on SSRN. Here is the abstract:
During her relatively short time on the Supreme Court of Canada (1982-1991), Justice Bertha Wilson constructed an independent and distinct approach to the relationship between rights and their limits under the Canadian Charter of Rights and Freedoms (the "Charter"). To Justice Wilson, judicial review was a duty imposed on the courts by the Charter through a deliberate and high-profile democratic process. Her conception of the judicial role under the Charter draws its sustenance from a strong historical claim about both the purpose and the process of rights entrenchment under the Charter. Properly understood, Justice Wilson’s vision of the relationship between rights and their limits under the Charter is an originalist one – one that is based on the assertion that the legitimacy of the judicial interpretative role finds its source in the events of 1980-82 when the Charter was enacted.
This article analyzes Justice Wilson’s conception of rights and limits under the Charter and demonstrates how it is anchored in a normative vision of the events of 1980-82. It then demonstrates how this originalist conception of the Charter permeated Justice Wilson’s model of the relationship between rights and their limits, mostly, but not exclusively, through her section 1 jurisprudence. This part distinguishes between the multiple meanings of Oakes – the case, the framework and the test – and shows how Justice Wilson focused on the much stricter Oakes framework while her colleagues were relaxing the Oakes test. This part further shows how Justice Wilson’s fidelity to the strictness of the Oakes framework translated into her staunch insistence on section 1 as the sole source of limits on rights, her fixation on onus and evidence and her understanding of the relationship between section 1 and other sections of the Charter. Finally, this article ends with a brief conclusion on the themes of constitutional duty and destiny.
And from the text:
Originalism is either ignored or denigrated in Canada. While
American scholars have developed a rich and sometimes nuanced
originalist scholarship,11 in Canada academic examination of the subject
is sparse.12 Moreover, in Canada there is a tendency to simply equate
originalism with “framers’ intent” — the strand of originalism which
holds that the subjective intentions of the framers of the Constitution
should be the authoritative normative source for the interpretation of its
substantive provisions. This is further equated with the widely
discredited “frozen rights theory” under the Canadian Bill of Rights.13
Under this dominant interpretative theory of the bill, the rights protected
by the Canadian Bill of Rights were only those that were in existence at
the time that the bill was enacted, i.e., 1960. This led critics to label it
“the frozen rights theory” and helped fuel the push for a constitutional
bill of rights which would both consist of and be capable of growth beyond the rights frozen in the 1960 Canadian Bill of Rights. Framers’
intent was associated with the frozen rights theory because it too focuses
on the particular meaning ascribed to specific rights at their point of
enactment. The Supreme Court explicitly rejected the frozen rights
theory for the interpretation of the Charter.14Justice Wilson explicitly disavowed framers’ intent and embraced a
purposive approach to constitutional interpretation consistent with the
living tree doctrine which sees the Constitution as “capable of growth
and expansion within its natural limits”.15* * *
Justice Wilson’s originalism is of the moderate variant. It does not
require that judges be bound by the specific meaning of the document
for those who gave it legal authority, but rather that they should be
guided by the original understanding of the Charter at a higher level of
abstraction. By this I mean “the motives, expectations, fears, and
aspirations that surrounded the enactment of the document in 1982”.27
This includes both the written record and the general context
surrounding the enactment of the Charter.
Very interesting and highly recommended.
One short comment: The article relies on the "original intent," "original meaing," "original understanding" schema for conceptualizing forms of originalism. I have yet to see a theoretically rigorous explication of the "original understanding" that actually differentiates it from the other two–once "understanding" is cashed out, it seems to slide into some form of intentionalism (e.g., original expected applications) or into some version of original public meaning originalism. Thus, in the last quoted passage–"motives", "expectations", etc. are intentional mental states.
ana