The Frank Dissent’s Novel Theory of the Charter: The Rhetoric and the Reality
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Authors
Weinrib, Jacob
Date
2021
Type
journal article
Language
en
Keyword
Alternative Title
Abstract
Since the early days of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada has applied a two-stage framework to determine whether legislation complies with the Charter. The first stage considers whether the legislation infringes a right or freedom. The second determines whether the infringement is demonstrably justified. In Frank v. Canada (Attorney General), the dissenting opinion of Côté and Brown JJ. rejects this framework and formulates an alternative. Their central claim is that the Charter does not justify the infringement of the rights that it elaborates. Accordingly, instead of focusing on whether an infringement is justified, courts should focus on whether the limit that shapes the “right’s outer boundaries” is justified. A limit that is justified does not infringe a right. A limit that infringes a right cannot be justified. The purpose of this essay is to assess the merits of the Frank dissent’s proposal. I begin by considering the dissent’s textual argument that its approach alone coheres with the language of “s. 1 itself”. I then assess the dissent’s normative argument that its proposal would enhance the quality of rights-protection under the Charter.
Description
Citation
Weinrib, Jacob. "The Frank Dissent’s Novel Theory of the Charter: The Rhetoric and the Reality" (2021). 100 The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 4. 85-103.
Publisher
Osgoode Hall Law School of York University