Law, Politics, and Legacy Building at the McLachlin Court in 2014

Abstract

This Article was written for Osgoode Hall Law School’s annual Constitutional Cases conference, and provides the keynote overview of the McLachlin Court’s 2014 constitutional jurisprudence. The Court’s 2014 constitutional decisions (Appointment and Senate References; Tsilqot’in Nation; Trial Lawyers) and restrictions on Mr. Big operations (Hart), in combination with a tsunami of Charter decisions early in 2015 (the 2015 Labour Trilogy; Carter v. Canada; R. v. Nur; and others), made this a legacy-building year. More than an overview, this Article probes the nature of the McLachlin Court’s legacy this year and the relationship between legal and political dynamics, to ask: in light of Chief Justice McLachlin’s modest goals as leader of the Court and the immediate backdrop of the Nadon controversy, the political leadership’s attack on the Chief Justice, and poor relations between the institutions, should the jurisprudence of this period be seen as a passive response to events or a more active assertion of judicial authority? Whether this legacy-making jurisprudence was a function of serendipity or opportunity (and perhaps both) is an intriguing question that sheds light on the Chief Justice and her Court in what was a singular and unforgettable year on legal and political measures.

Keywords: Supreme Court of Canada, 2014 constitutional decisions & early 2015 Charter cases, Nadon controversy and attack on the Chief Justice, Chief Justice McLachlin and legacy building in 2014

JEL Classification: K10