Professor Cameron provides an overview of the 2004 Supreme Court jurisprudence and states that despite the recent Chaoulli case the Court under Chief Justice McLachlin remains cautious choosing its moments of intervention under the Charter with care. Those who advocate strong judicial enforcement of Charter entitlements must have been sorely disappointed from the end of 2003 to the present. The Court dismissed a number of Charter claims though those losses were offset by the Demers, Vancouver Sun (Re), and Mann decisions. Last fall, the Court shifted to a no-nonsense style of decision-making which, spoke in one voice and resolved Charter claims efficiently, with analytical skill and precision. The decisions which fit that description include Hodge, N.A.P.E., Auton, Reference re Same Sex Marriage and the Quebec Language Education Cases. In the Same-Sex Marriage case the Court after concluding that same sex marriage was consistent with the Charter refused to consider whether an opposite sex definition was unconstitutional. In declining to answer the fourth question posed, the Court both protected itself from criticism for having the responsibility for gay marriage foisted upon the m and at the same time sent the message that if the federal government had wanted a legal answer to a legal question, it should have appealed the lower court decisions. In this way they took a very narrow and unobtrusive approach showing both institutional mettle and playing it safe by refusing to become a constitutional pawn in the political battle over gay marriage.
"2004: A Year of Mixed Messages From the Court."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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