This article examines the major constitutional decisions of the Supreme Court of Canada in the 2009 calendar year. The Court released a total of 17 constitutional decisions in 2009. of the se, 15 were Charter cases, while the other two dealt with federalism issues. One of the Charter cases, Ermineskin, also raised Aboriginal constitutional issues. Leading the Charter cases was a set of four companion cases on detention and exclusion of evidence led by Grant. In these decisions, the Court developed a new framework for the exclusion of evidence under section 24(2), and also added greater elaboration to the definition of detention for the purposes of sections 9 and 10(b). After applying these tests in the four companion cases, it is clear that the end result has been a slight restriction of Charter rights in favour of greater leeway for police conduct. The 2009 calendar year also featured Charter decisions engaging freedom of religion and freedom of expression. In one particularly significant decision, Grant v. Torstar, the Court invoked Charter principles of freedom of expression to open a responsible communication defence to defamation, which comes as welcome news to print journalists and other media. The 2009 calendar year also saw the continuation of some voting trends that have emerged on the Court in recent Charter jurisprudence. The two federalism cases, meanwhile, featured one modest departure from recent Supreme Court jurisprudence, with the Court ruling in favour of provincial over federal competence in Consolidated Fastfrate. Through it all we see a Court that continues to favour complex balancing tests involving competing factors over simpler — yet less flexible — categorical approaches. There does, however, appear to be an emerging consensus on “Charter fundamentals”.
Monahan, Patrick J. and Yap, James.
"Constitutional Cases 2009: An Overview."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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