The Supreme Court of Canada’s Charter jurisprudence often resembles a seesaw. The Court will tilt toward a robust approach that favours individual rights and freedoms only to adjust a short time later when the broader social or economic costs of its expansive jurisprudence become evident. Expansion is followed by contraction. Whether this pattern is best described in terms of “trimming its sails”, taking corrective measures, or simply clarifying doctrinal scope, the Court has teetered to one side and tottered back again on a number of occasions.
The concept of “access to justice” is one example. In 2014 it had been constitutionalized as a basic principle of the rule of law that can invalidate legislation. 2015 brought a corrective contraction. The Court demonstrated an awareness of the broader detrimental impact caused by too great an expansion. In R. v. Kokopenace and Henry v. British Columbia (Attorney General), it recalibrated, taking a pragmatic, realistic and practical approach.
Schwartz, Hart and Sangiuliano, Anthony Robert Student-at-Law.
"The Pragmatic Limits of Access to Justice."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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