Developments in Constitutional Law: The 1988-89 Term

Abstract

Co-authored with Dianne Pothier

This article canvasses the major developments from the 1988-89 term of the Supreme Court of Canada.

In terms of Charter jurisprudence there were major developments concerning equality rights, mobility rights, freedom of expression, and section 7.

More generally, there were also important developments in the federal trade and commerce power and broad hints as to the Supreme Court's leanings in relation to the federal spending power. There is clarification on how both federal and provincial laws affect federal undertakings, and re-affirmation of the ancillary nature of powers in relation to language. The Court reassesses the tests of when a provincial inferior tribunal oversteps the bounds created by section 96, and has an opportunity to consider again the jurisdiction of section 101 courts. The Court is also called upon to specify the extent of autonomy for denominational schools afforded section 93.

Thus, the 1988-89 term is particularly comprehensive in relation to the Constitution Act, 1867, extending beyond the standard sections 91/92 issues.

Keywords: Supreme Court of Canada, judicial role, constitutional law, Charter of Rights and Freedoms, federal trade and commerce power, freedom of expression, section 7