Resumen de An Analysis of the "No Hierarchy of Constitutional Rights" Doctrine

Mark Carter

• In Gosselin (Tutor of) v. Quebec (Attorney General) (2005) the Supreme Court of Canada provided its most recent and most extensive statement of the “no hierarchy of rights” doctrine. The doctrine holds that one part of the Constitution can not be used to prevent, restrict, or expand the implementation of another part of the Constitution. The author’s analysis of the no hierarchy of rights doctrine emphasizes the extent to which the doctrine is more correctly understood as a recognition of certain hierarchies among constitutional provisions, rather than a rejection of all hierarchies. The author also identifies several other respects in which the sweeping language that the Supreme Court has used to describe the no hierarchy of rights doctrine is at odds with the relatively few situations where the doctrine may be expected to be invoked. Finally, the author characterizes the no hierarchy of rights doctrine as an example of a “strategic positivist” approach to judicial review which may be gaining favour on the Supreme Court.