Since the first edition of this popular text was published in 1984, the Charter of Rights and Freedoms has transformed the role of the courts in Canadian politics. Addressing current controversies – including the invocation of the federal Emergencies Act, the fallout from the Supreme Court’s Greenhouse Gas References, and the resignation of Supreme Court Justice Russell Brown – Law, Politics, and the Judicial Process in Canada, 5th Edition offers ten updated chapters, all-new chapter introductions, and over two dozen new readings addressing current issues Canadian law and politics. It engages with multiple perspectives on controversial issues, juxtaposing competing perspectives to foster debate.
Taking a critical approach to the Charter of Rights and Freedoms and the growth of judicial power, editors F.L. Morton and Dave Snow provide an even-handed examination of the institutional implications of an increasingly-important Supreme Court of Canada. Law, Politics, and the Judicial Process in Canada, 5th Edition is the leading source for students, and all readers, interested in judicial power in Canada.
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- Pages
- 656
- Published in
- Calgary, CA
Table of Contents
- Front Cover 1
- Half Title 2
- Untitled 4
- Copyright Page 5
- Dedication 6
- Table of Contents 8
- Preface to the New Edition 16
- 1 | The Rule of Law in the Canadian Constitution 18
- 1.1 Roncarelli v. Duplessis 27
- 1.2 Of the Extent of the Legislative Power 32
- 1.3 The Declaration of Independence 35
- 1.4 The Rule of Law 35
- 1.5 Strong- and Weak-Form Judicial Review 39
- 1.6 Principles to Ensure the Law is Not Abused in Canada 40
- 1.7 Liberal versus Post-Liberal Constitutionalism: Applying the Charter to Civil Society 49
- 1.8 Key Terms 68
- 2 | The Canadian Judicial System 70
- 2.1 The Role and Functions of Final Appellate Courts: The Supreme Court of Canada 79
- 2.2 Constitution Act, 1867, Sections 96–101 89
- 2.3The Canadian Judicial System 90
- 2.4 The Criminal and Civil Court Processes 92
- 2.5 Key Terms 95
- 3 | Precedents, Legal Reasoning, and Judicial Decision-Making 97
- 3.1 Two Models of Judicial Decision-Making 115
- 3.2 Harrison v. Carswell 122
- 3.3 Stare Decisis: The Use of Precedents 125
- 3.4 Architect of the Common Law 128
- 3.5 Fact Finding in Adjudication 135
- 3.6 Judicial Review and Civil Liberties 140
- 3.7 Checks and Balances in Constitutional Interpretation 152
- 3.8 Originalism: It’s Not What You Think 161
- 3.9 Decision-Making in the Supreme Court of Canada 164
- 3.10 Studying Judicial Behaviour 168
- 3.11 Key Terms 176
- 4 | Judicial Recruitment and Selection 178
- 4.1 The Politics of Reforming Judicial Appointments 200
- 4.2 A Reflection of Canadian Society? An Analysis of Federal Appointments to Provincial Superior Courts by the Liberal Government of Justin Trudeau 208
- 4.3 Elevating Language Over All Other Forms ofDiversity 217
- 4.4 Bilingualism and Diversity: The Supreme Court Can—and Should—Have Both 220
- 4.5 The Honourable Michelle O’Bonsawin’s Questionnaire 223
- 4.6 Will Women Judges Really Make a Difference? 229
- 4.7 Key Terms 235
- 5 | Judicial Independence, Ethics, and Discipline 237
- 5.1 The Independence of the Judiciary 253
- 5.2 The McClung Affair 259
- 5.3 A Self-Harming of Judicial Independence: The Legacy of the Inquiry into Lori Douglas 265
- 5.4 The Inquiry into Justice Robin Camp 269
- 5.5 For Judge ‘Knees Together’ Camp: Education Is power 280
- 5.6 Bad People Make Bad Judges 282
- 5.7 The Resignation of Supreme Court Justice Russell Brown 285
- 5.8 The Challenge of Judging Supreme Court of Canada Judges 290
- 5.9 The Use of Former Supreme Court Justices by Governments: Assessing the Dangers 292
- 5.10 By Staying on Hong Kong Court, Beverley McLachlin Follows the Wrong ‘Principle’ 300
- 5.11 Key Terms 302
- 6 | Interest Groups and Access to Judicial Power 304
- 6.1 The Canadian Reference Power 319
- 6.2 Interventions and the Public Interest 326
- 6.3 The Women’s Legal Education and Action Fund 333
- 6.4 The Policy Consequences of LEAF’s Legal Mobilization 341
- 6.5 Interventions at the Supreme Court of Canada 350
- 6.6 Defending the Court Challenges Program 359
- 6.7 The Court Challenges Program Rises Once Again 361
- 6.8 The SNC Lavalin Controversy: The Shawcross Principle and Prosecutorial Independence 363
- 6.9 Wokeness Captures Alberta’s Law Society 372
- 6.10 Shameful Backlash to Lawyers’ Indigenous CultureCourse Shows Why We Need It 375
- 6.11 Key Terms 377
- 7 | Judicial Review and Federalism 379
- 7.1The “Living Tree” Approach to Interpreting the BNAAct 393
- 7.2 The “Watertight Compartments” Approach to Interpreting the BNA Act 394
- 7.3 The Anti-Inflation Case: The Anatomy of a Constitutional Decision 394
- 7.4 Re Constitution of Canada, 1981: The Patriation Reference 407
- 7.5 The Exemplar of the Secession Reference 416
- 7.6 Criminal Law, Federalism, and Assisted Reproduction 423
- 7.7 What the Supreme Court’s Carbon Tax Ruling Means 430
- 7.8 R. v. Comeau: The Scope of Trade Between Provinces and s. 121 435
- 7.9 Key Terms 438
- 8 | Indigenous Law and the Judicial Process 440
- 8.1 Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights 452
- 8.2 The Durability of Terra Nullius: Tsilhqot’in v. British Columbia 459
- 8.3 Is the Sky the Limit? Aboriginal Legal Rights in Resource Development 467
- 8.4 The Duty to Consult and Reconciliation: The Supreme Court’s Idea of the Purpose and Practice of Consulting Indigenous Peoples 478
- 8.5 Her Majesty’s Justice Be Done: Métis Legal Mobilization and the Pitfalls to Indigenous Political Movement Building 484
- 8.6 Charting Unknown Waters: Indigenous Rights and the Charter at Forty 491
- 8.7 Key Terms 500
- 9 | Courts, Partisanship, and Politics 502
- 9.1 Packing the Supreme Court 513
- 9.2 Much Ado About Little 515
- 9.3 Marc Nadon and the New Politics of Judicial Appointment 517
- 9.4 Stephen Harper v. Beverley McLachlin 525
- 9.5 Is the Liberal Party the Charter Party? 529
- 9.6 Canada’s Supreme Court Is Off-Balance as ‘Largeand Liberal’ Consensus on the Charter Falls Apart 534
- 9.7 Why ‘Liberal’ and ‘Conservative’ Are Unhelpful Terms in Canadian Courts 543
- 9.8 Key Terms 547
- 10 | Reconciling Judicial Review and Constitutional Democracy 549
- 10.1 Courts, Legislatures, and the Protection of Human Rights 557
- 10.2 What’s Wrong with the Charter Revolution and the Court Party? 560
- 10.3 The Charter Revolution and the Clash of Constitutionalisms 564
- 10.4 Robust Public Debate Needed on Use of Notwithstanding Clause 568
- 10.5 Notwithstanding Judicial Benediction: Why We Need to Dispel the Myths around Section 33 of the Charter 571
- 10.6 Dialogue or Monologue? Hogg and Thornton versus Morton 578
- 10.7 Checking the Court: Justifying Parliament’s Role in Constitutional Interpretation 589
- 10.8 40 Years On, Canada’s Charter of Rights Is a Beacon to the World 596
- 10.9 After 40 years, the Charter Is Still One of the Worst Bargains in Canadian History 598
- 10.10 The Charter and Canada’s New Political Culture: Are We All Ambassadors Now? 601
- 10.11 Key Terms 616
- Appendix A 618
- Appendix B 625
- Appendix C 628
- Appendix D 641
- Index 643
- Back Cover 654
