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2011 term; Charter of Rights and Freedoms; constitutional law; Crookes; Deschamps; Fraser; Insite; Karakatsanis; Lax Kw’alaams; Moldaver; PHS; Securities Reference; Supreme Court of Canada; Wagner; Withler


This paper provides an overview of the constitutional decisions of the Supreme Court of Canada released in the calendar year 2011. It was a high-profile one for the Court in constitutional matters: Two cases, PHS and the Securities Reference, are especially noteworthy, not just for their political significance, but their likely impact on constitutional jurisprudence in years to come. Several other decisions concerning freedom of association, equality rights and Aboriginal rights also reflected important developments in their respective areas, and in one case underscored deep divisions on the Court.Notably, 2011 was a year of unusual unanimity on the Court in the constitutional area: the justices agreed in all but four constitutional cases. That said, where the justices split, a core group comprising of the Chief Justice and Binnie, Charron, Rothstein and Cromwell JJ. were most likely to sign-on to the majority opinion. Continuing a trend in recent years, the more liberal LeBel, Fish and Abella JJ. found themselves writing separately relatively frequently, as did the especially independently-minded Deschamps J.For the second year in a row, Prime Minister Stephen Harper will have a chance to change the face of the Court given the retirement of Deschamps J. With the appointment of successor, Mr. Harper has appointed five justices, making 2012 the first year of a “Harper Court.” With two justices approaching mandatory retirements, by the time of the next federal election Mr. Harper will have had an opportunity to appoint a clear majority of justices, who will shape the jurisprudence of the Court for years to come.