Law, Politics, and the Judicial Process in Canada, 5th Edition
Edited by F.L. Morton & Dave Snow
$168.99 HC / $84.99 PB (S)
756 pages, 44 illustrations
6 x 9 inches
978-1-77385-517-2 (Hardback)
978-1-77385-518-9 (Paperback)
978-1-77385-519-6 (Institutional PDF)
978-1-77385-520-2 (ePub)
June 2024
About the Book
The fifth edition of Law, Politics, and the Judicial Process in Canada addresses the most recent issues, controversies, and political conversations regarding 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. 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.
About the Editors
F.L. Morton is an executive fellow at the School of Public Policy and professor emeritus at the University of Calgary. He was a member of the Legislative Assembly of Alberta from 2004-2012 and served as Minister of Energy, Minister of Finance, and Minister of Sustainable Resource Development. His book, The Charter Revolution and the Court Party, won a Donner Foundation book prize in 2002.
Dave Snow is an associate professor in the Department of Political Science at the University of Guelph, where he also teaches in the Criminal Justice and Public Policy program. His research and teaching interests include public policy, criminal justice, constitutional law, and federalism. He is the author Assisted Reproduction Policy in Canada: Framing, Federalism, and Failure.
Praise for Law, Politics and the Judicial Process in Canada, 5th Edition
Forty years since publication of the first edition, and now in its fifth edition, this book goes from strength to strength.The editors bring together contributions from leading scholars and commentators that frame discussion of the key issues – everything from the rule of law to federalism, the Charter, indigenous law, and the nature of the courts and judicial review. This book is an excellent resource and teaching tool and will stimulate interest in the study of government and the Canadian legal system.
—Justice Grant Huscroft, Court of Appeal for Ontario
A welcome and thorough update to this long-running reader in Canadian judicial politics. It pulls together a variety of materials—academic articles by both established and young scholars, case law, blog posts, newspaper editorials, judicial speeches, and editors’ essays—representing a broad range of ideological perspectives, on everything from judicial appointment and independence to Charter interpretation, interest group litigation, unwritten constitutional principles, and Indigenous law. It would be an excellent resource for courses on law and politics.
—Matthew Hennigar, Political Science, Brock University
Table of Contents
Preface
1. The Rule of Law in the Canadian Constitution
1.1 Roncarelli v. Duplessis
1.2 John Locke, “Of the Extent of the Legislative Power”
1.3 Thomas Jefferson, “The Declaration of Independence”
1.4 A.V. Dicey, “The Rule of Law”
1.5 Rainer Knopff, Rhonda Evans, Dennis Baker and Dave Snow, “Strong- and Weak-Form
Judicial Review”
1.6 Andrew David Irvine, “Principles to Ensure the Rule of Law is Not Abused in Canada”
1.7 Thomas M.J. Bateman, “Liberal versus Post-Liberal Constitutionalism: Applying the Charter to Civil Society”
1.8 Key Terms
2. The Canadian Judicial System
2.1 Chief Justice Bora Laskin, “The Role and Functions of Final Appellate Courts: The Supreme Court of Canada”
2.2 Constitution Act, 1867, Sections 96–101
2.3 The Canadian Judicial System
2.4 The Criminal and Civil Court Processes
2.5 Key Terms
3. Precedents, Legal Reasoning, and Judicial Decision Making
3.1 Paul Weiler, “Two Models of Judicial Decision-Making”
3.2 Harrison v. Carswell
3.3 C. Gordon Post, “Stare Decisis: The Use of Precedents”
3.4 Paul Weiler, “Architect of the Common Law”
3.5 Donald L. Horowitz, “Fact Finding in Adjudication”
3.6 F.L. Morton, “Judicial Review and Civil Liberties”
3.7 Justice Marshall Rothstein, “Checks and Balances in Constitutional Interpretation”
3.8 Leonid Sirota, “Originalism: It’s Not What You Think”
3.9 Justice Bertha Wilson, “Decision-Making in the Supreme Court of Canada”
3.10 Emmett Macfarlane, “Studying Judicial Behaviour”
3.11 Key Terms
4. Judicial Recruitment and Selection
4.1 Rainer Knopff, “The Politics of Reforming Judicial Appointments”
4.2 Erin Crandall, “A Reflection of Canadian Society? An Analysis of Federal Appointments to Provincial Superior Courts by the Liberal Government of Justin Trudeau”
4.3 Howard Anglin, “Elevating language over all other forms of diversity”
4.4 François Larocque and Stéphanie Chouinard, “Bilingualism and diversity: The Supreme Court can — and should — have both”
4.5 The Honourable Michelle O’Bonsawin’s Questionnaire
4.6 Justice Bertha Wilson, “Will Women Judges Really Make a Difference?”
4.7 Key Terms
5. Judicial Independence, Ethics, and Discipline
5.1 W.R. Lederman, “The Independence of the Judiciary”
5.2 The McClung Affair
5.3 R. Lee Akazaki, “A Self-Harming of Judicial Independence: The Legacy of the Inquiry into Lori Douglas”
5.4 The Inquiry into Justice Robin Camp
5.5 Brenda Cossman, “For Judge ‘knees together’ Camp: Education is power”
5.6 Lauren Heuser, “Bad People Make Bad Judges”
5.7 The Resignation of Supreme Court Justice Russell Brown
5.8 Eric M. Adams, “The Challenge of Judging Supreme Court of Canada Judges”
5.9 Brendan Dell, “The Use of Former Supreme Court Justices by Governments: Assessing the Dangers”
5.10 Peter L. Biro, “By Staying on Hong Kong Court, Beverley McLachlin Follows the Wrong ‘Principle’”
5.11 Key Terms
6. Interest Groups and Access to Judicial Power
6.1 Kate Puddister, “The Canadian Reference Power”
6.2 Alan Borovoy, “Interventions and the Public Interest”
6.3 Sherene Razack, “The Women’s Legal Education and Action Fund”
6.4 Christopher P. Manfredi, “The Policy Consequences of LEAF’s Legal Mobilization”
6.5 Eleni Nicolaides, “Interventions at the Supreme Court of Canada”
6.6 Carissima Mathen and Kyle Kirkup, “Defending the Court Challenges Program”
6.7 Ian Brodie, “The Court Challenges Program Rises Once Again”
6.8 Kent W. Roach, “The SNC Lavalin Controversy: The Shawcross Principle and Prosecutorial Independence”
6.9 Glenn Blackett, “Wokeness Captures Alberta’s Law Society”
6.10 Daniel Song, “Shameful backlash to lawyers’ Indigenous culture course shows why we need it”
6.11 Key Terms
7. Judicial Review and Federalism
7.1 Lord Sankey, “The ‘Living Tree’ Approach to Interpreting the BNA Act”
7.2 Lord Atkin, “The ‘Watertight Compartments’ Approach to Interpreting the BNA Act”
7.3 Peter H. Russell, “The Anti-Inflation Case: The Anatomy of a Constitutional Decision”
7.4 Michael Mandel, “Re Constitution of Canada, 1981: The Patriation Reference”
7.5 Robert Schertzer, “The Exemplar of the Secession Reference”
7.6 Dave Snow, “Criminal Law, Federalism, and Assisted Reproduction”
7.7 F.L. Morton, “What the Supreme Court’s Carbon Tax Ruling Means”
7.8 Asher Honickman, “R. v. Comeau: The Scope of Trade Between Provinces and s. 121”
7.9 Key Terms
8. Indigenous Law and the Judicial Process
8.1 Kirsten Matoy Carlson, “Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights”
8.2 John Borrows, “The Durability of Terra Nullius: Tsilhqot’in v. British Columbia”
8.3 Dwight Newman, “Is the Sky the Limit? Aboriginal Legal Rights in Resource Development”
8.4 Minh Do, “The Duty to Consult and Reconciliation: The Supreme Court’s Idea of the Purpose and Practice of Consulting Indigenous Peoples”
8.5 Daniel Voth, “Her Majesty’s Justice Be Done: Métis Legal Mobilization and the Pitfalls to Indigenous Political Movement Building”
8.6 Jeremy Patzer and Kiera Ladner, “Charting Unknown Waters: Indigenous Rights and the Charter at Forty”
8.7 Key Terms
9. Courts, Partisanship, and Politics
9.1 Jamie Cameron, “Packing the Supreme Court”
9.2 Emmett Macfarlane, “Much Ado About Little”
9.3 Thomas M.J. Bateman, “Marc Nadon and the New Politics of Judicial Appointment”
9.4 Stephen Harper v. Beverley McLachlin
9.5 Mark Harding, “Is the Liberal Party the Charter Party?”
9.6 Sean Fine, “Canada’s Supreme Court is off-balance as ‘large and liberal’ consensus on the Charter falls apart”
9.7 Gerard Kennedy, “Why ‘Liberal’ and ‘Conservative’ are unhelpful terms in Canadian courts”
9.8 Key Terms
10. Reconciling Judicial Review and Constitutional Democracy
10.1 Donald Smiley, “Courts, Legislatures, and the Protection of Human Rights”
10.2 F.L. Morton and Rainer Knopff, “What’s Wrong with the Charter Revolution and the Court Party?”
10.3 Mark Harding, “The Charter Revolution and the Clash of Constitutionalisms”
10.4 Robert Leckey, “Robust public debate needed on use of notwithstanding clause”
10.5 Geoffrey Sigalet, “Notwithstanding Judicial Benediction: Why We Need to Dispel the Myths around Section 33 of the Charter”
10.6 Dialogue or Monologue? Hogg and Thornton versus Morton
10.7 Dennis Baker, “Checking the Court: Justifying Parliament’s Role in Constitutional Interpretation”
10.8 Richard Albert, “40 years on, Canada’s Charter of Rights is a beacon to the world”
10.9 F.L. Morton, “After 40 years, the Charter is still one of the worst bargains in Canadian history”
10.10 Chief Justice Glenn D. Joyal, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”
10.11 Key Terms
Appendices
A Constitution Act, 1867, ss. 91–95, 133
B Canadian Bill of Rights, 1960
C Constitution Act, 1982
Sections 1–34. Canadian Charter of Rights and Freedoms
Section 35. Rights of the Aboriginal Peoples of Canada
Sections 38–49. Procedure for Amending the Constitution of Canada
Section 52. Supremacy Clause
D Online Resources
Index
Table of Contents
Preface
1. The Rule of Law in the Canadian Constitution
1.1 Roncarelli v. Duplessis
1.2 John Locke, “Of the Extent of the Legislative Power”
1.3 Thomas Jefferson, “The Declaration of Independence”
1.4 A.V. Dicey, “The Rule of Law”
1.5 Rainer Knopff, Rhonda Evans, Dennis Baker and Dave Snow, “Strong- and Weak-Form
Judicial Review”
1.6 Andrew David Irvine, “Principles to Ensure the Rule of Law is Not Abused in Canada”
1.7 Thomas M.J. Bateman, “Liberal versus Post-Liberal Constitutionalism: Applying the Charter to Civil Society”
1.8 Key Terms
2. The Canadian Judicial System
2.1 Chief Justice Bora Laskin, “The Role and Functions of Final Appellate Courts: The Supreme Court of Canada”
2.2 Constitution Act, 1867, Sections 96–101
2.3 The Canadian Judicial System
2.4 The Criminal and Civil Court Processes
2.5 Key Terms
3. Precedents, Legal Reasoning, and Judicial Decision Making
3.1 Paul Weiler, “Two Models of Judicial Decision-Making”
3.2 Harrison v. Carswell
3.3 C. Gordon Post, “Stare Decisis: The Use of Precedents”
3.4 Paul Weiler, “Architect of the Common Law”
3.5 Donald L. Horowitz, “Fact Finding in Adjudication”
3.6 F.L. Morton, “Judicial Review and Civil Liberties”
3.7 Justice Marshall Rothstein, “Checks and Balances in Constitutional Interpretation”
3.8 Leonid Sirota, “Originalism: It’s Not What You Think”
3.9 Justice Bertha Wilson, “Decision-Making in the Supreme Court of Canada”
3.10 Emmett Macfarlane, “Studying Judicial Behaviour”
3.11 Key Terms
4. Judicial Recruitment and Selection
4.1 Rainer Knopff, “The Politics of Reforming Judicial Appointments”
4.2 Erin Crandall, “A Reflection of Canadian Society? An Analysis of Federal Appointments to Provincial Superior Courts by the Liberal Government of Justin Trudeau”
4.3 Howard Anglin, “Elevating language over all other forms of diversity”
4.4 François Larocque and Stéphanie Chouinard, “Bilingualism and diversity: The Supreme Court can — and should — have both”
4.5 The Honourable Michelle O’Bonsawin’s Questionnaire
4.6 Justice Bertha Wilson, “Will Women Judges Really Make a Difference?”
4.7 Key Terms
5. Judicial Independence, Ethics, and Discipline
5.1 W.R. Lederman, “The Independence of the Judiciary”
5.2 The McClung Affair
5.3 R. Lee Akazaki, “A Self-Harming of Judicial Independence: The Legacy of the Inquiry into Lori Douglas”
5.4 The Inquiry into Justice Robin Camp
5.5 Brenda Cossman, “For Judge ‘knees together’ Camp: Education is power”
5.6 Lauren Heuser, “Bad People Make Bad Judges”
5.7 The Resignation of Supreme Court Justice Russell Brown
5.8 Eric M. Adams, “The Challenge of Judging Supreme Court of Canada Judges”
5.9 Brendan Dell, “The Use of Former Supreme Court Justices by Governments: Assessing the Dangers”
5.10 Peter L. Biro, “By Staying on Hong Kong Court, Beverley McLachlin Follows the Wrong ‘Principle’”
5.11 Key Terms
6. Interest Groups and Access to Judicial Power
6.1 Kate Puddister, “The Canadian Reference Power”
6.2 Alan Borovoy, “Interventions and the Public Interest”
6.3 Sherene Razack, “The Women’s Legal Education and Action Fund”
6.4 Christopher P. Manfredi, “The Policy Consequences of LEAF’s Legal Mobilization”
6.5 Eleni Nicolaides, “Interventions at the Supreme Court of Canada”
6.6 Carissima Mathen and Kyle Kirkup, “Defending the Court Challenges Program”
6.7 Ian Brodie, “The Court Challenges Program Rises Once Again”
6.8 Kent W. Roach, “The SNC Lavalin Controversy: The Shawcross Principle and Prosecutorial Independence”
6.9 Glenn Blackett, “Wokeness Captures Alberta’s Law Society”
6.10 Daniel Song, “Shameful backlash to lawyers’ Indigenous culture course shows why we need it”
6.11 Key Terms
7. Judicial Review and Federalism
7.1 Lord Sankey, “The ‘Living Tree’ Approach to Interpreting the BNA Act”
7.2 Lord Atkin, “The ‘Watertight Compartments’ Approach to Interpreting the BNA Act”
7.3 Peter H. Russell, “The Anti-Inflation Case: The Anatomy of a Constitutional Decision”
7.4 Michael Mandel, “Re Constitution of Canada, 1981: The Patriation Reference”
7.5 Robert Schertzer, “The Exemplar of the Secession Reference”
7.6 Dave Snow, “Criminal Law, Federalism, and Assisted Reproduction”
7.7 F.L. Morton, “What the Supreme Court’s Carbon Tax Ruling Means”
7.8 Asher Honickman, “R. v. Comeau: The Scope of Trade Between Provinces and s. 121”
7.9 Key Terms
8. Indigenous Law and the Judicial Process
8.1 Kirsten Matoy Carlson, “Political Failure, Judicial Opportunity: The Supreme Court of Canada and Aboriginal and Treaty Rights”
8.2 John Borrows, “The Durability of Terra Nullius: Tsilhqot’in v. British Columbia”
8.3 Dwight Newman, “Is the Sky the Limit? Aboriginal Legal Rights in Resource Development”
8.4 Minh Do, “The Duty to Consult and Reconciliation: The Supreme Court’s Idea of the Purpose and Practice of Consulting Indigenous Peoples”
8.5 Daniel Voth, “Her Majesty’s Justice Be Done: Métis Legal Mobilization and the Pitfalls to Indigenous Political Movement Building”
8.6 Jeremy Patzer and Kiera Ladner, “Charting Unknown Waters: Indigenous Rights and the Charter at Forty”
8.7 Key Terms
9. Courts, Partisanship, and Politics
9.1 Jamie Cameron, “Packing the Supreme Court”
9.2 Emmett Macfarlane, “Much Ado About Little”
9.3 Thomas M.J. Bateman, “Marc Nadon and the New Politics of Judicial Appointment”
9.4 Stephen Harper v. Beverley McLachlin
9.5 Mark Harding, “Is the Liberal Party the Charter Party?”
9.6 Sean Fine, “Canada’s Supreme Court is off-balance as ‘large and liberal’ consensus on the Charter falls apart”
9.7 Gerard Kennedy, “Why ‘Liberal’ and ‘Conservative’ are unhelpful terms in Canadian courts”
9.8 Key Terms
10. Reconciling Judicial Review and Constitutional Democracy
10.1 Donald Smiley, “Courts, Legislatures, and the Protection of Human Rights”
10.2 F.L. Morton and Rainer Knopff, “What’s Wrong with the Charter Revolution and the Court Party?”
10.3 Mark Harding, “The Charter Revolution and the Clash of Constitutionalisms”
10.4 Robert Leckey, “Robust public debate needed on use of notwithstanding clause”
10.5 Geoffrey Sigalet, “Notwithstanding Judicial Benediction: Why We Need to Dispel the Myths around Section 33 of the Charter”
10.6 Dialogue or Monologue? Hogg and Thornton versus Morton
10.7 Dennis Baker, “Checking the Court: Justifying Parliament’s Role in Constitutional Interpretation”
10.8 Richard Albert, “40 years on, Canada’s Charter of Rights is a beacon to the world”
10.9 F.L. Morton, “After 40 years, the Charter is still one of the worst bargains in Canadian history”
10.10 Chief Justice Glenn D. Joyal, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”
10.11 Key Terms
Appendices
A Constitution Act, 1867, ss. 91–95, 133
B Canadian Bill of Rights, 1960
C Constitution Act, 1982
Sections 1–34. Canadian Charter of Rights and Freedoms
Section 35. Rights of the Aboriginal Peoples of Canada
Sections 38–49. Procedure for Amending the Constitution of Canada
Section 52. Supremacy Clause
D Online Resources
Index