Smiley on Canada’s Charter


in Canada, Law, Politics

“It was argued that rights could be safeguarded in an absolute fashion, but section 1 of the Charter reads, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” No prudent consumer would buy a refrigerator with a “guarantee” subject to such imprecise qualifications. The Charter would have been more honestly and accurately entitled “A Constitutional Enactment for the Better Protection of Certain Rights and Freedoms in Canada.” The problem is not, after all, the “guaranteeing” of rights, but rather the procedures by which government actors are permitted to define, rank, modify and override certain claims of individuals and groups.”

Smiley, Donald. “A Dangerous Deed: The Constitution Act, 1982” in Banting, Keith and Richard Simeon eds. And No One Cheered: Federalism, Democracy & The Constitution Act. (Methuen, Toronto). 1983. p.91 (hardcover)

{ 1 comment… read it below or add one }

oleh March 27, 2013 at 1:30 am

I have been involved in two Charter cases in the last two years. I find the application of section 1 of the Charter one of the more of the more important and interesting balancing provisions of the Charter.

Equating the necessity of the balancing rights and the interests of society, to consumer buying a refrigerator seems disingenuous for someone seriously writing on federalism, democracy and the Constitution.

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