Date of Award

3-8-2021

Document Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

First Advisor

Benjamin L. Berger

Abstract

This dissertation responds to two recent developments in the landscape of Canadian constitutional litigation. First, the advent of the Canadian Charter of Rights and Freedoms has invited a wave of strategic constitutional challenges directed at systemic social reform, including many cases aligned with progressive social justice goals. Second, the focus of Charter litigation has shifted from legal interpretation and argument to the consideration of extensive evidence pertaining to social and legislative facts. The recent successes of a number of strategic Charter challenges to legislation brought on behalf of marginalized communities and involving voluminous evidentiary records suggests that the above developments hold considerable promise for progressive social movements. And yet, critical scholars and activists have persistently questioned the potential of constitutional litigation, and law generally, to effect progressive social change, pointing to a tension between the pursuit of positive legal outcomes and the broader transformation of social power relations. Using a case study of Bedford v Canada (AG), along with interviews of constitutional litigators and judges, this project explores an under-theorized facet of the above-noted tension by asking about the epistemological implications of the wide-ranging fact-finding processes that have come to characterize progressive constitutional challenges to legislation, especially under section 7 of the Charter. This inquiry is premised on the contention that the realization of social justice depends, at least in part, on the realization of what I call "epistemological justice", defined as the just treatment of knowledge in legal processes. Drawing on the work of feminist epistemologists and other critical thinkers, the account of epistemological justice that I develop in this project centers on a commitment to fully hearing and giving due weight to the experiential knowledge of marginalized people who are directly affected by a given law or policy in decision-making processes. My analysis then asks whether the progressive promise of strategic Charter litigation is borne out at the level of epistemological justice in this sense. Ultimately, my findings suggest that there is reason to doubt this proposition, and thus further reason to doubt the value of strategic Charter litigation as a tool for social justice.

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