The Canadian Political Science Association

By empowering judges to establish national standards, the Charter of Rights limits the capacity of provincial governments to build distinctive communities. But, Samuel LaSelva reminds us, if the Charter is to be the “nation-saving ” device it purports to be, we require a conception of Charter rights that not only acknowledges this will to live together, but recognizes our desire to live apart. Despite this imperative, scant judicial attention has been paid to developing a consistent model of rights in a federal context. Such is not the case in the Council of Europe, where judges have gone to great lengths to articulate a conception of the European Convention on Human Rights that is cognizant of member states ’ desire to maintain distinctive national communities. This recognizes the diverse cultural and legal experiences of the Member States as legitimate justification for the limitation of, or deviation from, otherwise pan-European standards. Despite important parallels with the Canadian context, however, the margin of appreciation has been virtually ignored by Canadian scholars and jurists alike. This paper corrects this oversight, and explores the margin of appreciation in the Canadian context. Following some necessary background on “the margin, ” as well as an exploration of the ultimately misguided application of the principle in Canada to date, it concludes that the margin of appreciation may, with necessary modification, be a particularly appropriate way of thinking about the relationship between federalism and the Charter