Canadian Constitutional Law in a Nutshell
AbstractThis article examines two recent Supreme Court of Canada decisions and provides an analysis of the reasons employed by the court. The author argues that the two cases illustrate the inadequate and subjective reasoning employed by the court to reach what they consider to be a just decision. This "results oriented" approach is criticized by the author and used to examine how cases with similar legal principles can be decided in diametrically opposed ways so as to reach the desired result. While the author does not disagree with the results reached in the two cases, he does take exception to the reasoning used. Using the Hydro-Quebec case the author argues the correct legal decision could have been reached without invoking new subjective tests of constitutionality. Specifically, he argues that the use of the provincial inability test could have led to the same result. Further, he asserts that the reasoning invoked in the decisions reinstates the old rigid categories that have long been discarded. These categories, he feels, can be used to allow judges to make purely subjective decisions more easily. He argues, jurisprudentially, that Hydro- Quebec establishes a dangerous precedent, one that could threaten the rule of law and our federal structure. The Eldridge case, according to the author, also makes false distinctions and categorizations in order to reach the results desired by the court. The author criticizes this as leading to legal decisions based on the personal and political views of the individual judges. Further, he argues that the judges ignored their own pronouncements and precedent in reaching their decision. The author asserts that new categorical distinctions were used merely as a means to an end. He concludes that although the reasoning employed in the cases is flawed, they still prove that the law and justice can coincide. Finally, the author asserts that just and equitable decisions can be reached by an impartial judiciary using sound legal principles
Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:
- Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
- Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
- Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
- Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.
To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.