The Power of Perspectives

The Canadian Bar Association

Jennifer Taylor

Opinion

The Supreme Court and the legacy of the Quebec Secession Reference

By Jennifer Taylor August 10, 2015 10 August 2015

The Supreme Court and the legacy of the Quebec Secession Reference

From time to time the Supreme Court is called upon to answer the big, existential questions about Canada. So it is noteworthy that the newest appointment to the court, Justice Russell Brown, once wrote—when he was a University of Alberta law professor—that a province’s secession was not a matter for the court to decide.

The comment was published in a blog post about the Supreme Court’s groundbreaking opinion in the Reference re Secession of Quebec, handed down a few years after the razor-thin referendum result in 1995, and which established the “clear majority on a clear question” principle: If a clear majority of Quebecers voted to secede, that would trigger a constitutional obligation on the rest of the federation to negotiate the terms of that secession. Here’s what Professor Brown wrote in 2007:

Parliament conferred upon the Court powers to interpret the rules of the game, not to determine how and when someone can quit the game. If there ever was a question for legislatures and parliaments to sort out for themselves, subscription to and disassociation from a federal structure is surely it, no?

Respectfully, my own view is that the Supreme Court was right to tackle this question, and has the competence and legitimacy to answer similar questions in future. This part of the court’s role is all the more important given that in 2015 and onward, many of the existential questions facing Canada will inevitably relate to the urgent issue of reconciliation of Aboriginal and non-Aboriginal communities in Canada. These are likely to end up on the Supreme Court Justices’ desks.

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The Supreme Court

The evolution of reasonableness

By Jennifer Taylor June 9, 2015 9 June 2015

The evolution of reasonableness

What would a reasonable person think? It’s an eternal question in the common law, and an eternally interesting one. This is because the “reasonable person” standard is a conceptual vessel into which we pour a multitude of assumptions about the kinds of knowledge and values we want our legal system to reflect. As a result, the standard ends up evolving, awkwardly and inconsistently at times, based on perceptions that might fluctuate with a changing society.

Two recent decisions of the Supreme Court of Canada illustrate this point.  The contexts are different, but each decision sheds light on how the Court views the reasonable person as a barometer of broader issues facing the justice system.

At issue in the first ruling, Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), a case about minority language education rights, was whether the trial judge’s conduct during trial, along with his extra-judicial affiliation with a Francophone association, gave rise to a reasonable apprehension of bias (judged, of course, using the standard of the reasonable person).

In the second, R v St-Cloud, the question was whether an accused person’s detention pending trial was required to maintain public confidence in the administration of justice – judged according to what reasonable members of the public would think. Justice Abella wrote the unanimous reasons in Yukon, and Justice Wagner wrote for the Court in St-Cloud.

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Judicial independence

When the personal is political

By Jennifer Taylor March 11, 2015 11 March 2015

When the personal is political

You could hear the cries of “judicial activism” before the ink was dry on Carter v Canada (Attorney General). Carter, of course, was the Supreme Court’s February decision striking down the criminal prohibition on physician-assisted suicide as unconstitutional.

The definition of “judicial activism” is a political one — a vessel into which a whole bunch of preconceptions are poured — and reveals just as much about the definer as it does about the Court. For the sake of this post, let’s just say it means that the Court has reached a decision, most likely in a constitutional case, that invalidates a statutory provision and / or contradicts government policy. It has long been trendy to critique the Supreme Court as “activist.” As Emmett Macfarlane has put it, “In a lot of public discourse, complaints about activist decisions are simply complaints from someone who disagrees with a particular outcome.”

That’s certainly a good part of it.

But the conversation seems different this time. Why so?

Because this time, it feels personal.

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