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Second Opinion: The year in constitutional review

In constitutional terms, 2007 was a significant year, both in and out of the courts. At the Supreme Court of Canada, last year may be remembered as a breakout year for Chief Justice Beverley McLachlin - her eighth heading up the top court.

For the McLachlin court, 2007 will likely be remembered as a year in which it quietly but decisively abandoned several important and established precedents in constitutional cases and charted its own course.

Graeme Mitchell, director of Saskatchewan’s Constitutional Law Branch and frequent advocate before the court, has said that in 2007 the Supreme Court was “cleaning house.” It overruled or disavowed at least five established constitutional precedents.

In Kingstreet Investments Ltd. v. New Brunswick (Finance), the first decision of 2007, the court abandoned the common law bar to recovery for ultra vires taxes that had been previously embraced by members of the Antonio Lamer court. Then in Canadian Western Bank v. Alberta, the McLachlin court severely hobbled the longstanding doctrine of interjurisdictional immunity.

Next, in R. v. Hape, the court repudiated its earlier jurisprudence on the extraterritorial application of the Charter and severely restricted the circumstances under which the Charter will have effect on foreign soil.

In likely the most dramatic constitutional case of the term, the McLachlin court overruled certain aspects of the 1987 labour trilogy, which had held that the right to bargain collectively is not guaranteed by s. 2(d) of the Charter. Health Services and Support-Facilities Subsector Bargaining Association v. British Columbia held that the court had erred in the labour trilogy and that the right to bargain collectively was protected under the Charter.

The past year was also notable for what the court did not do.

In February, the court upheld most of the provisions of anti-terrorism legislation in Charkaoui v. Canada (Citizenship and Immigration), save for those that mandated an investigative hearing in the complete absence of any representation for the individual standing accused. The Harper government responded by tabling legislation last fall to allow for “special advocates” in security-certificate hearings.

In Hislop v. Canada (Attorney General), the court refused to expand the scope of retroactive relief for constitutional violations. Same-sex partners had successfully argued that pension benefits had unconstitutionally been denied to them.

They sought benefits going back to 1985, when s. 15 of the Charter went into force. Had the petitioners been successful, the ramifications for government public policy and the public purse would have been enormous - a fact obviously appreciated by the members of the court.

In the continuing fight against the scourge of gun crime in our cities, the court upheld the police power to set up roadblocks looking for guns in R. v. Clayton. In Named Person v. Vancouver Sun, the court refused to subordinate informer privilege to the right to a fair trial.

For those concerned about access to justice under our Constitution, 2007 was not a good year. Vancouver’s Little Sisters bookstore was back at the court for the second time in a decade, but was unable to convince a majority of the judges that it should be awarded advance costs under the British Columbia (Minister of Forests) v. Okanagan Indian Band doctrine to continue its battle against Canada Customs.

The decision reduced the advance-costs doctrine to a fleeting dream for most litigants and likely restricted it to aboriginal cases. In British Columbia (AG) v. Christie, the court didn’t recognize a general constitutional right to state-funded counsel in civil cases.

Those eager for a more in-depth review and analysis will have to wait until Osgoode’s annual Constitutional Cases Conference in April.  Some of the most notable constitutional developments in 2007 occurred outside the Supreme Court.

Sadly, I must note the passing of Gerald Le Dain and the Antonio Lamer. Le Dain served on the Supreme Court between 1984 and 1988, in the early days of the Charter. Lamer, an unabashed defender of the Charter and of the independence of the judiciary, modernized the court under his leadership. Much of the constitutional landscape in Canada today - especially in criminal law - bears his imprint.

Two cases at the Ontario Court of Appeal radically altered the scope of freedom of expression. In the first, a divided panel read the right to access to information into s. 2(b) of the Charter and held that it overrode solicitor-client privilege (Ministry of Public Safety and Security (Formerly Solicitor General) v. Criminal Lawyers’ Association). Leave to appeal was granted and the court will likely hear the case this year.

Meanwhile in Cusson v. Quan, the Court of Appeal recognized the public-interest-responsible-journalism defence to a claim for defamation.

Finally, up the street at the University of Toronto, David Asper donated a record $7.5 million to create a centre for constitutional studies, which will include a litigation clinic to fill some of the void left from the abolition of the court challenges program.

Adam Dodek is a visiting scholar at Osgoode Hall Law School. His email is

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