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Full-Text Articles in Law
Interpreting The Charter Of Rights: Generosity And Justification, Peter W. Hogg
Interpreting The Charter Of Rights: Generosity And Justification, Peter W. Hogg
Osgoode Hall Law Journal
The author argues that there is a close relationship between the scope of the rights guaranteed by the Charter and the standard of justification required under section 1. The broader the scope of a right, the more relaxed the standard of justification must be. A generous interpretation of a right is incompatible with the stringent Oakes standard of justification. However, a purposive interpretation of a right, confining the right to conduct that is worthy of constitutional protection, is compatible with a stringent standard of justification.
Ventriloquism And The Verbal Icon: A Comment On Professor Hogg's "The Charter And American Theories Of Interpretation", Richard F. Devlin
Ventriloquism And The Verbal Icon: A Comment On Professor Hogg's "The Charter And American Theories Of Interpretation", Richard F. Devlin
Osgoode Hall Law Journal
In this brief comment I offer some critical reflections on Professor Hogg's proposed approach to Charter interpretation. I suggest that Professor Hogg's attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that "interpretivism" is explanatorily inadequate, yet on the other he refuses to accept "non-interpretivism" for he realizes that it has the potential to unmask the politics of law. I argue that Hogg's third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates …
An Essay On Constitutional Interpretation, Noel Lyon
An Essay On Constitutional Interpretation, Noel Lyon
Osgoode Hall Law Journal
The Article sets out a theory of interpretation where the Charter reflects an authoritative standard of public policy. It is not to be used only as a test of legality but as a test of legitimacy. Section 35 of the Constitution on aboriginal rights offers an opportunity in which the Charter's central concept of fundamental justice in the context of a free and democratic society can be applied to break out of sterile common law conceptions and interpretations. The questions of legitimacy and public policy are instrumental to the way we govern ourselves.