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The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Authors

Peter W. Hogg

Abstract

Section 7 of the Charter of Rights was not intended by the framers to be a provision that authorized extensive judicial review of legislation. The protection of property was deliberately not included in its text in order to reduce its scope — and the potential for judicial review. and the phrase “the principles of fundamental justice” was intended to cover only procedural due process. Contrary to expectations in 1982, over the succeeding 30 years the Supreme Court of Canada has given an expansive interpretation to section 7 and used it to strike down a variety of laws, including the criminalization of abortion, criminal offences that lack the element of mens rea, “overbroad” laws, “disproportionate” laws and “arbitrary” laws. The last three categories permit the Court to review any law that has an effect on life, liberty or security of the person to determine whether the law is in fact fulfilling its objective, or undermining the objective by doing more harm than good. Under these categories, the Court has struck down restrictions on the liberty of convicted sex offenders, restrictions on the liberty of those mentally unfit to stand trial, the prohibition of private health care insurance, and the attempted closing of a safe injection site for drug addicts. at the time of writing, lower courts have struck down the Criminal Code provisions respecting prostitution and physician-assisted suicide, issues that will have to be resolved by the Supreme Court. The 30-year history of section 7 has been remarkable, attracting criticism from those who deplore the shift of policy-making in a democracy from elected legislative bodies to unelected judges. And, of course, there is support for the decisions from those who believe that, even in a democracy, dysfunctional laws should be subjected to an independent, evidence-based review of their impact, especially on individuals who are unpopular or who have little political power. It is hard to predict whether this activist phase, in which the Supreme Court has so greatly expanded judicial review under section 7, will continue into the next 30 years. If so, the n the “career” of section 7 will become even more “brilliant”.

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Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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