Changing Course or Trimming Sails?
In the past few years, the Supreme Court of Canada has demonstrated a remarkable willingness to review its own decisions and to reach new results. In reviewing the Court’s decisions during the period of Chief Justice McLachlin’s tenure, the author has selected ten cases illustrating this tendency, from 2005–2008. This is not intended as an exhaustive review of all cases where the Court has reconsidered its own decisions, but is aimed at those with a substantial public law impact. As well, since the article’s focus is on the Court’s willingness to reconsider its own decisions, it is not intended to be a detailed review of the numerous legal and constitutional issues that arose in all of these cases. The author concludes that the Supreme Court is open to principled criticism of its own decisions, from both academics and counsel.
Thomson Irvine is senior Crown counsel in the constitutional law branch of the Saskatchewan Ministry of Justice and Attorney General.