Justice Wilson and the Charter: An Engagement to Keep

Justice Wilson was a serious scholar of the Charter who confronted its flashpoints, including social change, the proper relationship between the individual and the state, and judicial deference. Her engagement with the Charter is an exemplar for our own. She, along with other key members of the early Court, constructed a framework of Charter interpretation which constitutes a lasting legacy. There was an active commitment to judicial review of legislation in light of Charter rights. The common law, the rights jurisprudence of other countries and framers’ intent were not determinative of Charter rights. Instead, interpretation was driven by a purposive approach to rights grounded in social reality as demonstrated by the effect of the law and evidence. Where Justice Wilson states that section 7 requires the judiciary to protect individuals’ choices from government interference, her approach amounts to judicial colonization of a country’s decision-making. However, elsewhere she sounds a quieter note, restricting section 7 to important decisions intimately affecting private lives, notably parent-child relations and health and medical decisions. This quieter note has resonated in subsequent Supreme Court judgments which have relied on her work when protecting important and fundamental life choices in these areas. She held the government to a high standard for justifying the breach of rights under section 1. While she was not an Oakes absolutist and was prepared to allow the government to protect the vulnerable, generally she felt that deference to the legislature and judicial review were incompatible and that justifications based on pragmatic considerations, cost and administrative convenience must fail. Her strict approach to section 1 meant that she failed to fully grapple with the full Charter equation which requires us both to protect rights and to identify what we value in a democracy other than rights