Not Merely Interpretative

Abstract

Listen

Translate article

In this paper, I argue that the Supreme Court's interpretation of section 25 of the Charter in Dickson v VGFN establishes an important precedent that may encourage the courts to reverse the jurisprudential trend against a proper interpretation of section 28, which is currently at issue in the Bill 21 case. I argue that both provisions — section 25 and section 28 — share key features, in that that although they do not establish freestanding rights, they are nonetheless of substantive import. Both provisions operate to condition, and even negate or block, the application of other sections of the Charter. In this sense, the tendency among commentators to characterize these provisions as either standalone rights guarantees or merely interpretative provisions is a false dichotomy. Indeed, a middle ground between these two options is precisely what the majority of the Court has now determined with respect to section 25, a reality that opens an obvious jurisprudential door to a similar reading of section 28.