Constitutional Cases 2010: An Overview

Supreme Court Law Review, Vol. 54, pp. 3-53, 2011

52 Pages Posted: 3 Dec 2011

See all articles by Patrick J. Monahan

Patrick J. Monahan

Osgoode Hall Law School; Government of Ontario - Ontario Ministry of Attorney General

Chanakya Sethi

Yale University - Law School; York University - Osgoode Hall Law School

Date Written: April 15, 2011

Abstract

This paper provides an overview of the constitutional decisions of the Supreme Court of Canada released in the calendar year 2010. It was a significant year, with important decisions concerning Charter remedies, freedom of speech, the right to counsel, the division of powers, and the interpretation of First Nations treaties. Especially in the Charter arena, the Court sees itself as a policymaker and appears to be comfortable in that role. It has adopted a cautious, pragmatic approach to Charter analysis, eschewing categorical rules in favor of case-by-case balancing tests that afford it greater flexibility.

The 17 Charter cases decided in 2010 evidence a strong reluctance on the part of the Court to use the Charter in the first instance to address the claims before it. Instead, in a broad range of cases — from Charter remedies to access to information and journalist-source privilege to search and seizure — the Court instead turned first to statutory interpretation and common law rules, albeit infused by “Charter values”, to reach its decisions. Each of the Court’s five federalism cases in 2010 resulted in multiple opinions, even where the Court was unanimous in its holding. The cases evidence two small camps of justices, each with their own firmly held jurisprudential view preventing them from signing on to an opinion of the other, along with a larger group of justices who alternate between the two camps. In Aboriginal rights, the Court engaged in its first foray into the interpretation of a “modern” First Nations treaty and handed down its fourth and fifth decision in a series of seminal cases to address the Crown’s “duty to consult” with Aboriginal peoples.

Looking to the future, the retirements of Binnie J. and Charron J. present the government with a significant opportunity to influence the direction of the Court. Voting data suggests the absence of Binnie J. may be felt more acutely if the jurisprudential disposition of the government’s two new appointees is comparable to that of its two sitting appointees. Looking further ahead, however, the approaching retirements of LeBel and Fish JJ., who are among the most liberal justices on the court and who must retire by 2014, will present the government with another significant opportunity to shape the direction of the Court’s jurisprudence in years to come.

Keywords: Supreme Court of Canada, Constitutional Law, 2010 term, Khadr, Nasogaluak, National Post, Toronto Star, Conway, Criminal Lawyers’ Association, Ward, Sinclair, Gomboc, Lacombe, COPA, Assisted Human Reproduction Act, Moses, Little Salmon, McLachlin, Binnie, Charron

JEL Classification: K39

Suggested Citation

Monahan, Patrick and Sethi, Chanakya, Constitutional Cases 2010: An Overview (April 15, 2011). Supreme Court Law Review, Vol. 54, pp. 3-53, 2011. Available at SSRN: https://ssrn.com/abstract=1940159

Patrick Monahan

Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

HOME PAGE: http://www.osgoode.yoku.ca

Government of Ontario - Ontario Ministry of Attorney General ( email )

720 Bay Street, 11th Floor
Toronto, Ontario M7A 2S9
Canada

Chanakya Sethi (Contact Author)

Yale University - Law School ( email )

127 Wall St.
New Haven, CT 06511
United States

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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