The McLachlin Court and the Promise of Procedural Justice
The McLachlin Court has turned to procedural justice as a wellspring for solving difficult disputes in a variety of contexts. In this brief article, the author examines three such contexts: (1) national security, (2) Aboriginal rights, and (3) social and economic rights. In each context, the Court has turned to creatively designed procedures to address difficult and potentially divisive substantive problems. In each context, however, the implications of the Court’s procedural turn also may frustrate its intention. The author argues that the Supreme Court of Canada has turned to procedural solutions to substantive disputes over constitutional rights in new and dramatic ways, and also that if the Court treats procedural justice unhinged from the substantive outcomes that bring parties to Court in the first place, the Court’s procedural turn will, over time, seem less “prudent” and more problematic.
Lorne Sossin is a professor and Dean, Osgoode Hall Law School.