Making Sense Of The Canadian Charter Of Rights And Freedoms PDF Download

"The principle of proportionality dominates the theory and practice of constitutional rights adjudication around the world. Many authors seek to explain and defend proportionality review for the obligation it imposes on the state to substantively justify every constitutional rights limitation. On this view, the requirement of substantive justification is the essence of proportionality review and the source of its normative appeal. However, the academic literature that lauds proportionality analysis for promoting a so-called "culture of justification" suffers from a shortcoming. It does not pay sufficient attention to the importance of local practices of legal argument and disagreement over what constitutes a persuasive justification. These omissions are especially striking given that contemporary justice debates are beset by uncertainty about who counts, what values matter, and how disagreements ought to be resolved. Mindful of those shortcomings, the author examines the practices of justification associated with one concrete manifestation of constitutional rights adjudication: the interpretation and application of the principles of fundamental justice enshrined in section 7 of the Canadian Charter of Rights and Freedoms. The author argues that the ostensibly rational and objective standard of justification currently associated with the principles against arbitrariness, overbreadth and gross disproportionality, which mimics a logic of proportionality, is shaped by contingent historical and jurisprudential factors, and is linked closely with judicial understandings of community. Those factors lead judges hearing cases involving principles against arbitrariness, overbreadth and gross disproportionality to privilege justifications that meet a decontextualized standard of rationalism, rely on empirical evidence, and emphasize measurable impacts on individuals. Although this approach is compatible with justifications that all citizens might reasonably accept, it offers no principled basis on which to distinguish persuasive from unpersuasive justifications for constitutional rights limitations. Moreover, it tends to conceal and normalize the understandings of community that underpin fundamental justice judgments. Drawing notably on Hannah Arendt's writings, the author proposes an alternative, aesthetic, account of judgments that invoke the principles of fundamental justice against arbitrariness, overbreadth and gross disproportionality. That account, which would view the validity of such judgments intersubjectively, is consistent with greater judicial modesty and candour about the contingent foundations of persuasive justifications. It would accordingly foster an environment in which courts could respond more thoughtfully to the challenges that plural understandings of justice and community pose to constitutional rights adjudication." --