Title

Judicial Accountability, Michel Bastarache, and the Charter’s Fundamental Freedoms

Document Type

Article

Publication Date

2011

Source Publication

Supreme Court Law Review

Keywords

Candian Charter, Judicial accountability

Abstract

In 2008, the year of Michel Bastarache's retirement from the Court, Osgoode Hall Law School's 12th Annual Constitutional Cases Conference explored some of his contributions to the Charter jurisprudence. This article considers how this jurisprudence stands up to Justice Bastarache's concept of judicial accountability. In sections which address his key majority opinions on expressive and associational freedom, the discussion examines the relationship between principles and outcomes in his decision-making. The analysis reveals, once his reasons for judgment and treatment of precedent are explored, that Justice Bastarache changed his mind and, in doing so, promoted outcomes at the expense of principled decision-making. Yet his commitment to principle - and to the judicial accountability he advocated - caused him to ground his conclusions in elaborate reasoning. The difficulty is that his reasoning was convoluted and unpersuasive. To be blunt, he was a kind of precedent bully: though the term is unflattering, it describes what Justice Bastarache had to do to keep precedent on his side when it stood in the way of certain outcomes. The article concludes that he took judicial accountability seriously but was unable to reconcile its requirements with the demands of decision-making - as he perceived them - under the Charter's fundamental freedoms guarantees.

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