A New Subtlety in Judicial Supremacy: Review of the 2003-2004 Constitutional Cases

Supreme Court Law Review, Vol. 26, p. 77, 2004

36 Pages Posted: 3 May 2010

Date Written: 2004

Abstract

As the debate over new appointments may suggest, there is a need to protect the legitimacy of the Court as a legal (rather than political) institution. These factors lead, I think, to a new subtlety in the ways that the Court describes its own work and its position in the Canadian system. We can therefore see hints in the Charter cases that some justices are working to avoid the perception that the Supreme Court of Canada is a place for politics. This they can do through expressions of distaste when something they choose to call "politics" arrives at the Court, and frequent assertions of deference to Parliament. Yet at the same time, the tests which the Court is creating and the ways in which they are being applied serve to increase the Court's discretionary powers. The Court is required to walk a fine line in balancing between upholding the Constitution and usurping the power of Parliament, and a close look at this year's "balancing act" reveals just how difficult defining that line can be. The Court will have difficulty trying to outrun the perception that they are engaging in a form of judicial politics (although whether or not this is a criticism of the Court is another question). The cases this year feed that perception by failing to develop bright line tests. To the extent that the Court is using "context specific," "flexible" analysis which rely heavily on the factual matrix, and particularly where the tests involve balancing, the line between law and politics - assuming it exists becomes increasingly blurred.

This article reviews the constitutional cases decided by the Supreme Court of Canada in the 2003-2004 term. For the purposes of this piece, the term runs from August 2003 to June 2004. Only cases in which the Constitution figured prominently in the Supreme Court's decision are included (cases in which reasons were not provided are excluded).

Part II of this article will consider cases involving freedom of religion and expression. Part III looks at the cases decided under section 7, while Part IV reviews this year's Charter equality cases. Part V looks at three section 8 search and seizure cases. In Part VI, the important Doucet-Boudreau decision on remedy is described. Finally, Part VII considers the division of powers cases. The Supreme Court did not closely consider any constitutional section which falls outside of these categories.

Keywords: Constitutional Law, Review, Freedom of Religion and Expression, Life, Liberty, And Security of the Person, Marijuana Trilogy, Equality, Search and Seizure, Remedy, Division of Powers

JEL Classification: K10, K19

Suggested Citation

Lawrence, Sonia, A New Subtlety in Judicial Supremacy: Review of the 2003-2004 Constitutional Cases (2004). Supreme Court Law Review, Vol. 26, p. 77, 2004, Available at SSRN: https://ssrn.com/abstract=1599626

Sonia Lawrence (Contact Author)

Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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