Governance and Anarchy in the S.2(B) Jurisprudence: A Comment on Vancouver Sun and Harper v. Canada

National Journal of Constitutional Law Vol.17 2004

33 Pages Posted: 26 Apr 2012

See all articles by Jamie Cameron

Jamie Cameron

York University - Osgoode Hall Law School

Date Written: April 26, 2012

Abstract

The article identifies and explains a double standard in the Supreme Court of Canada jurisprudence. The contrast is between the open court jurisprudence, which is a model of good constitutional governance – or principled decision making – and the Court’s s.2(b) methodology, which is “anarchistic” or capricious and undisciplined, in the sense of this article. Two landmark cases decided in 2004 illustrate the double standard: the first is Re Vancouver Sun, [2004] 2 S.C.R. 332, which dealt with the open court principle under Parliament’s anti-terrorism provision for investigative hearings; it represents a high water mark for open court and s.2(b) more generally. The second case is Harper v. Canada, [2004] 1 S.C.R. 827, which upheld Parliament’s strict limits on third party election spending and, in doing so, marks a low point for s.2(b) methodology and expressive freedom under the Charter. After analyzing this dichotomy in the jurisprudence the article proposes that the open court model be adapted and applied to other s.2(b) issues. This would place all expressive freedom cases under a model of governance that promotes principled decision making.

Keywords: governance, anarchy, s.2(b), jurisprudence, supreme court, canada, charter

JEL Classification: K00, K14, K40, K41, K42

Suggested Citation

Cameron, Jamie, Governance and Anarchy in the S.2(B) Jurisprudence: A Comment on Vancouver Sun and Harper v. Canada (April 26, 2012). National Journal of Constitutional Law Vol.17 2004. Available at SSRN: https://ssrn.com/abstract=2034995

Jamie Cameron (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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