Law, Politics, and the Judicial Process in Canada, 4th Edition

Newly revised and updated to reflect the latest changes in Canadian law and politics, the fourth edition of Law, Politics, and the Judicial Process in Canada is the leading source for all students interested in the Charter of Rights and Freedoms and the growth of judicial power in Canada.

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. Newly revised and updated, Law, Politics, and the Judicial Process in Canada, 4th Edition provides an introduction to the issues raised by the changing political role of Canadian judges. It includes over 40 new readings, including two all-new chapters on the Harper Conservatives and Aboriginal Law.

Addressing current controversies, including the Canadian Judicial Council’s investigations into Justice Robin Camp and Lori Douglas and the Trudeau Government’s re-introduction of the Court Challenges Program, this book strives for competing perspectives, with many readings juxtaposed 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 current and ongoing issues.

Law, Politics, and the Judicial Process in Canada, 4th Edition is the leading source for students interested in the Charter of Rights and Freedoms and the growth of judicial power in Canada.

F.L. Morton is an executive fellow at the School of Public Policy at the University of Calgary. He was a professor in the Department of Public Policy at the University of Calgary. From 2004-2012 he was a member of the Legislative Assembly of Alberta during which he served as a cabinet minister for Energy, Finance, and Sustainable Resources.

Dave Snow is an associate professor in the Department of Political Science and the Criminal Justice and Public Policy program, University of Guelph. He is the author of Assisted Reproduction Policy in Canada: Framing, Federalism, and Failure. 

Preface

Section 1: The Rule of Law in the Canadian Constitution
Roncarelli v. Duplessis
John Locke, “Off the Extent of the Legislative Power”
Thomas Jefferson, “The Declaration of Independence”
A.V.C. Dicey, “The Rule of Law”
Rainer Knopff, Rhonda Evans, Dennis Baker, and Dave Snow, “Strong- and Weak-Form Judicial Review”
W.R. Lederman, “The Independence of the Judiciary”
Thomas M.J. Bateman, “Liberal versus Post-Liberal Constitutionalism: Applying the Charter to Civil Society”
Key Terms

Section 2: Political Jurisprudence
Paul Weiler, “Two Models of Judicial Decision-Making”
Harrison v. Carswell
Justice Bertha Wilson, “Will Women Judges Really Make a Difference”*
Michael Mandel, “Re Constitution of Canada, 1981: The Patriation Reference”
Robert Schertzer, “The Exemplar of the Secession Reference“
F.L. Morton, “No Statecraft, Questionable Jurisprudence: How the Supreme Court Tried to Kill Senate Reform”
Key Terms

Section 3: The Canadian Judicial System
Chief Justice Bora Laskin, “The Role and Functions of Final Appellate Courts: The Supreme Court of Canada”
Constitution Act, 1867, Sections 96-101
The Canadian Judicial System
The Criminal and Civil Court Processes
Key Terms

Section 4: Judicial Recruitment and Selection
Jeffry Simpson, “Patronage in Judicial Appointments”
Lori Hausegger, Troy Riddell, Matthew Hennigar, and Emmanuelle Richez, “Exploring the Links Between Party and Appointment: Canadian Federal Judicial Appointments from 1989 to 2003”
Andrew Griffith, “Diversity Among Federal and Provincial Judges”
Erin Crandall and Andrea Lawlor, “The Politics of Judicial Appointment: Do Party Connections Impede the Appointment of Women to Canada’s Federally Appointed Courts?”
The Honourable Malcom Rowe’s Questionnaire
Lenoid Sirota, “A Judge Unbound”
Key Terms

Section 5: Judicial Independence, Ethics, and Discipline
WR. Lederman, “The Independence of the Judiciary”
The Berger Affair
Chief Justice Bora Laskin, “The Meaning and Scope of Judicial Independence”
The McClung Affair
Reference re Remuneration of Judges of the Provincial Court (P.E.I.)
R. Lee Akazaki, “A Self-Harming of Judicial Independence: The Legacy of the Inquiry into Lori Douglas”
The Inquiry into Justice Robin Camp
Brenda Crossman, “For Judge ‘knees together’ Camp: Education is power”
Lauren Heuser, “Bad People Make Bad Judges”
Key Terms

Section 6: Interest Groups and Access to Judicial Power
Kate Puddister, “The Canadian Reference Power”
Alan Borovoy, “Interventions and the Public Interest”
Sherene Razak, “The Women’s Legal Education and Action Fund”
Chrisopher P. Manfredi, “The Policy Consequences of LEAF’s Legal Mobilization”
Gregory Hein, “Interest Group Litigation and Canadian Democracy”
Ian Brodie, “Response to Greogry Hein”
Carissima Mathen and Kyle Kirkup, “Defending the Court Challenges Program”
Ian Brodie, “The Court Challenges Program Rises Once Again”
Charles Epp, “Do Bills of Rights Matter>”
Donald R. Songer, “Do Constitutions Matter?
Key Terms

Section 7: Precedents, Statutes and Legal Reasoning
C. Gordon Post, “Stare Decisis: The Use of Precedents”
Paul Weiler, “Architect of the Common Law
Boucher vs. The King
Donald L. Horowitz, “Fact Finding in Adjudication”
Chelsea Ogilvie, “Stare Decisis and Social Facts in the Charter Era”
Key Terms

Section 8: Judicial Decision-Making
Justice Bertha Wilson, “Decision-Making in the Supreme Court”
Peter McCormick, “The Charter by the Numbers”
Emmett Macfarlane, “Studying Judicial Behaviour”
Dave Snow and Mark S. Harding, “The Three Waves of Post-Charter Supreme Court Scholarship”
Key Terms

Section 9: Judicial Review and Federalism
Jennifer Smith, “The Origins of Judicial Review in Canada”
Lord Sankey, “The ‘Living Tree’ Approach to Interpreting the BNA Act“
Lord Atkin, “The ‘Watertight Compartments’ Approach to Interpreting the BNA Act“
Peter H. Russell, “The Anti-Inflation Case: The Anatomy of a Constitutional Decision”
Patrick Monahan, “Does Federalism Review Matter?”
Dave Snow, “Criminal Law, Federalism, and Assisted Reproduction”
Key Terms

Section 10: Aboriginal Law and the Judicial Process
Kirsten Matoy Carlson, “Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights”
John Borrows, “The Durability of Terra Nullius: Tsilhqot’in v. British Columbia“
Dwight Newman, “Is the Sky the Limit? Aboriginal Legal Rights in Resource Development”
Minh Do, “Aboriginal-Crown Relations and the Duty to Consult in the Supreme Court”
Daniel Voth, “Her Majesty’s Justice be Done: Metis Legal Mobilization and the Pitfalls to Indigenous Political Movement Building”
Key Terms

Section 11: The Harper Conservatives and the Canadian Judiciary
Sean Fine, “Stephen Harper’s Courts: How the Judiciary Has Been Remade”
Rainer Knopff, “The Politics of Reforming Judicial Appointments”
Jamie Cameron “Packing the Supreme Court”
Emmett Macfarlane, “Much Ado About Little”
Lorne Sossin, “Harper’s Petard? The Relationship between Courts and the Executive under the Conservative Government”
Thoams M.J. Bateman, “Marc Nadon and the New Politics of Judicial Appointment”
Stephen Harper v. Beverley McLaghlin
Benjamin Perrin, “Dissent from Within at the Supreme Court of Canada”
Christopher Manfredi, “Conservatives, the Supreme Court of Canada, and the Constitution: Judicial-Government Relationship, 2006-2015”
Key Terms

Section 12: Reconciling Judicial Review and Constitutional Democracy
Donald Smiley, “Courts Legislatures and the Protection of Human Rights”
Cheif Justice Beverley McLachlin, “Unwritten Constitutional Principles: What is Going On?”
F.L. Morton, “Judicial Review and Civil Liberties”
.L. Morton and Rainer Knopff, “Whats’ Wrong With the Charter Revolution and the Court Party?”
Peter H. Russell, “The Notwithsanding Clause: The Charter‘s Homage to Parliamentary Democracy”
Saskatchewan Uses the Notwithstanding Clause: Dwight Newman (Pro) and Leonid Sirota (Con)
Dialogue or Monologue? Hogg and Thornton versus Morton
Dennis Baker, “Checking the Court: Justifying Parliament’s Role in Constitutional Interpretation”
Cheif Justice Glenn D. Joyal, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”
Key Terms

Appendices
A – Constitution Act, 1867, selections
B – Canadian Buill of Rights, 1960
C – Constitution Act, 1982, selections
D – Chief Justices of the Supreme Court of Canada
E – Puisne Justices of the Supreme Court of Canada
F – Online Resources

Index