Constitutional Cases 2010: An Overview

• Published in: The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
• Main Authors: Monahan, Patrick, Sethi, Chanakya
• Format: Text
• Language: unknown
• Published: Osgoode Digital Commons 2011
• Subjects: First Nations
• Online Access: https://digitalcommons.osgoode.yorku.ca/sclr/vol54/iss1/1; https://doi.org/10.60082/2563-8505.1207; https://digitalcommons.osgoode.yorku.ca/context/sclr/article/1207/viewcontent/34627_36381_1_PB.pdf

With important decisions concerning Charter remedies, freedom of speech, the right to counsel, the division of powers, and the interpretation of First Nations treaties, 2010 was a significant year on the constitutional front. It was also a controversial year: only 56 per cent of constitutional cases were unanimous in judgment, in contrast to the overall average for the year of 75 per cent. That split was especially palpable in the federalism and Aboriginal rights cases, where two sharply divided camps tended to emerge. In the Charter arena, the Court showed notable deference to the legislative and executive branches while eschewing categorical rules in favour of case-by-case balancing tests that afford it greater flexibility. Looking to the future, the surprise retirements of Justices Binnie and Charron present the government with a significant opportunity to influence the direction of the Court. In particular, the retirement of the Justice Binnie may reinforce the present direction in which the Court appears to be moving, at least in constitutional cases, if his successor’s jurisprudential disposition is comparable to that of the present government’s previous appointees.