Canadian Politics

A17(a) - Rights and the Judicial Branch

Date: Jun 1 | Time: 10:30am to 12:00pm | Location: Classroom - CL 232 Room ID: 15735

Chair/Président/Présidente : Dave Snow (University of Guelph)

Discussant/Commentateur/Commentatrice : Dave Snow (University of Guelph)

'No Hierarchy of Rights': Examining the Impact of the Supreme Court of Canada's Balancing Framework on Freedom of Religion: Gwyneth Bergman (Queen's University)
Abstract: The Supreme Court of Canada has consistently conveyed that it does not favour certain rights and freedoms over others. The justices have argued that there is no hierarchy of rights, and that all rights are equal. As such, they claim that what they are engaging in is a “balancing” of rights. Despite the assumed importance of balancing, however, there have been few attempts made to explain how it is possible in the binary context of judicial decision making. Despite their claims otherwise, a reading of the jurisprudence suggests that the justices are, in fact, required to prioritize certain rights over others when deciding cases. Critically, religion does not seem to be faring particularly well under the Supreme Court’s purported balancing framework. The proposed paper will analyze how the Supreme Court interprets religious claims, and will assess whether its attempts to balance competing rights results in lesser protection for freedom of religion. In particular, the paper will focus on how the Supreme Court interprets religious claims in light of other competing rights, interests, and government objectives, and whether the Court's interpretive method results in the subordination of freedom of religion to other rights and public interest claims. Whether or not the SCC’s interpretive method can successfully balance competing claims has deep implications for how freedom of religion will be exercised at all levels of the judiciary. This, in turn, will affect how politicians and legislators interpret their obligations to religious freedom in constructing policy.

Judicial Careers and the Supreme Court of Canada 1949- 2017: Gerald Baier (University of British Columbia)
Abstract: On December 15th, 2017 Chief Justice Beverly McLachlin will retire from the Supreme Court of Canada, nine months shy of her 75th birthday. She will retire as the longest serving Chief Justice in the court's history and as the longest serving justice in the post-1949 era. This career of extraordinary longevity invites reflection on the tenure and career patterns of the justices of the Supreme Court of Canada. What are the career patterns of judges on Canada's highest court? Is there a typical pre-appointment pattern? Are their typical tenures on the court? After retirement? Are those patterns influenced by the institutional rules of appointment and retirement? Do career patterns have the potential to be relevant to the way the Supreme Court operates as an institution and the outcomes of cases? The paper will address the initial three questions with an empirical examination of the more than 50 appointees who have served on the court since 1949. The second set of questions is more speculative and requires hypothesizing from the empirical results alongside any changes in institutional conditions in the same period. Retirement entitlements, parties in government, the court's workload and working conditions and other variables will be examined for evidence of contributions to career patterns. This examination can contribute to comparative thinking on how judges are selected and the influence of career norms on judicial behaviour. It may also suggest institutional failings or strengths in the structure of high court careers in Canada that shoule be addressed or better

Democratic Rights on Trial: Judicial Reasoning, Charter Litigation, and the Shaping of Canadian Democracy: Jonah Goldberg (University of Toronto)
Abstract: The purpose of this essay is to gain a greater understanding of judicial reasoning and strategic judicial behaviour through analysing Charter cases in one of its major subfields: democratic rights. While many authors have previously sought to address democratic rights cases dealing with judicial reasoning, none have offered a unified and comprehensive theory of democratic rights litigation that addresses all of the field’s major subcomponents, including prisoners’ voting rights, referendum and election campaign finance restrictions, party subsidies, and electoral boundaries. This essay will seek to provide a unified and comprehensive theory through looking at democratic rights cases involving all four major areas. It will ultimately argue that democratic rights litigation can best be understood as a product of tensions between two major lines of judicial reasoning, remedial egalitarianism and procedural libertarianism, over the constitutional meaning of equality. This essay will begin by exploring the nature of judicial reasoning and strategic behaviour, and then turn to defining and explaining the two major lines of judicial reasoning that characterize democratic rights litigation. Next, it will seek to apply the theoretical concepts of remedial egalitarianism and procedural libertarianism to explain judicial rulings involving the intersection between democratic rights on the one hand and freedom of expression and representation on the other. This essay concludes by speculating about where democratic rights litigation is likely to go in the future and how Canada’s experiences might be relevant to scholars abroad.