Language and Judgment's Reach: Reflecting on Limits on Rights

Abstract

This is a review essay on The Limitation of Charter Rights: Critical Essays on R. v. Oakes (Luc Tremblay and Gregoire Webber eds., 2009), a collection celebrating the 20th anniversary of the Supreme Court of Canada's leading judgment on proportionality and limits on rights guaranteed by the Canadian Charter of Rights and Freedoms. The essay reflects on language in Canadian constitutional law, both the importance of the words used in talk about rights and the challenges of bilingualism. Sustaining scholarly reflection and dialogue in English and French, based on the equally authentic English and French versions of constitutional sources, remains difficult. The essay also reflects on the disjuncture between the legislative judgment in Oakes - the Court set out, prospectively, a test of general application for constitutional proportionality analysis - and the traditional conception of the judge's role in the common law tradition. Fidelity to that tradition would have inclined the judges, more modestly, to allow rules to emerge from the resolution of concrete disputes over time. Peculiarly, the question as to how judges, formed in the common law tradition, might interpret and apply a written constitution seems not to figure among the concerns of those who declare themselves the standard bearers of the so-called common law constitution.