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National Journal of Constitutional Law. Volume 17 (2004), p. 71-103.


anarchy; Canada; charter; governance; Jurisprudence; s.2(b); supreme court


The article identifies and explains a double standard in the Supreme Court of Canada jurisprudence. The contrast is between the open court jurisprudence, which is a model of good constitutional governance – or principled decision making – and the Court’s s.2(b) methodology, which is “anarchistic” or capricious and undisciplined, in the sense of this article. Two landmark cases decided in 2004 illustrate the double standard: the first is Re Vancouver Sun, [2004] 2 S.C.R. 332, which dealt with the open court principle under Parliament’s anti-terrorism provision for investigative hearings, it represents a high water mark for open court and s.2(b) more generally. The second case is Harper v. Canada, [2004] 1 S.C.R. 827, which upheld Parliament’s strict limits on third party election spending and, in doing so, marks a low point for s.2(b) methodology and expressive freedom under the Charter. After analyzing this dichotomy in the jurisprudence the article proposes that the open court model be adapted and applied to other s.2(b) issues. This would place all expressive freedom cases under a model of governance that promotes principled decision making.

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