THE YEAR IN REVIEW: CRITICAL UPDATES ON SIGNIFICANT CHARTER LITIGATION
Saba Ahmad presented significant developments in Charter litigation over the past year, where she summarized key findings from 14 Charter decisions by the Supreme Court of Canada and offered the following insights:
- Over the past year, Justice Abella has consistently decided, whether in dissent or with the majority, in favour of expanding the scope of Charter rights protected by sections 7 and section 15, commonly joined by Justice Karakatsanis and Justice Martin;
- In two recent decisions, Justice Abella criticized the majority’s adoption of a Scalia-style textualist approach, inapposite to the living tree doctrine, arguing such an approach has no basis Canadian jurisprudence; and
- No palpable and overriding error analysis in Sherman was made but SCC effectively overturned a finding of fact by Dunphy J. that there was a reasonable concern for the beneficiaries’ physical safety, where the motive of the killer was not known and possibly not spent.