The Mclachlin Court and the Charter in 2012

Abstract

This article on the McLachlin Court and the Charter in 2012 present the annual review of the Supreme Court’s jurisprudence for Osgoode Hall’s Annual Constitutional Cases conference and conference publication (63 Supreme Court L. Rev. (2d); forthcoming, fall 2013). The article provides quantitative data on the 2012 Charter jurisprudence and identifies a downward trend in Charter success rates in the McLachlin Court, from 2010 to the present. The article also offers pointed analysis of two key Charter decisions in this period: R. v. Khawaka and Saskatchewan (Human Rights Commission) v. Whatcott (decided early in 2013). Both raised high stakes questions about the Charter’s fundamental freedoms, and the Court rejected the Charter claims both times, by unanimous decision. The downward trend in Charter success rates, the Court’s unanimity in those key decisions, and the Charter’s mediocre year at the Court inspire a broader reflection, at the end of the article, of the dynamics at work and what they signify. That reflection considers whether the transformative energy of the Charter’s early years has been spent and is being replaced by a conception of the Charter as a middle-ground document. It explores the significance of that shift, for the Charter as an instrument of progress, and for the Court’s leadership in thinking deeply about the Charter’s promises and how they can be kept.

Keywords: court, charter, jurisprudence, McLachlin

JEL Classification: K40, K41