Liberalism and Canadian Constitutional Law: Tensions in an Evolving Vision of Liberty

ROBERT YALDEN

ABSTRACT

Charter decisions emanating from the Supreme Court of Canada contain a tension between two visions of liberty that form integral parts of Canada's constitutional heritage. An orthodox vision of liberty has traditionally dominated Canadian constitutional law. At the heart of this orthodox vision there lies a complex understanding of rights that is rooted in a qualified conception of negative liberty. Within this orthodox vision there are, however, embryonic ideas about the importance of a more expansive vision of liberty that fosters equality of respect, and that may well be necessary in order to secure the vision of individual dignity captured by the orthodox vision of liberty.

A tension between these two visions pervades recent decisions of the Supreme Court of Canada: both because the court's members differ with respect to the merits of each vision's understanding of the individual's relation to society, and because some of the justices are themselves struggling to reconcile these visions. The author concludes that the two visions of liberty are in fact highly compatible, and that in order to fully achieve the orthodox vision of liberty's objectives our courts must develop a more expansive vision of liberty.

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Citation: (1988) 47(1) U.T. Fac. L. Rev. 132.
Copyright © 1988. University of Toronto Faculty of Law Review.
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