Opinions and Current Issues Blog

Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com

Charter Round Up – 2021

I had the pleasure of presenting at the 20th Annual Charter Conference, where I summarized 14 key Charter cases decided by the Supreme Court of Canada in the previous year.

I prepared an analysis, aimed at uncovering who the more “progressive” judges on the court might be. To help, I made a spreadsheet, listing each decision released, and the names of the Judges associated with each decision. I then colour-coded each box to reflect my own assessment of whether the holding was expanding an existing Charter protection (in green) or contracting it (for which I used the colour yellow). I did this to see what patterns would emerge.

It is a somewhat artificial exercise to characterize a decision as wholesale expanding or contracting civil liberties.

That said, when I did so, patterns did indeed emerge.

First: on the s 7 and 15 cases, Justices Martin, Karakatsanis, and Abella consistently ruled to expand Charter protections. Justice Kasirer almost always agrees with them. I noted Justices Abella and Côté tended to dissent more often than other Justices. And if we exclude unanimous decision, Justices Wagner, Abella and Côté are never all three in agreement.  Karakatsanis and Martin usually agree, usually joined by Kasirer. Justices Moldaver and Wagner also usually concur with one another. Justices Brown and Rowe are also often on the same side.

I began my presentation with a description of the 9147 case, which was about whether or not corporations may claim protections under s. 8 of the Charter, which deals with cruel and unusual punishment. They can’t. While that decision was unanimous, the more progressive judges (Justices Abella, Martin, and Karakatsanis) urged a more purposive approach, and criticized the majority’s textualist analysis. I used the split in that case to analyze all subsequent cases.


Interestingly, about two months later, journalist Sean Fine published a similar piece in the Globe and Mail. His article is available here:

https://www.theglobeandmail.com/canada/article-canadas-supreme-court-is-off-balance-as-large-and-liberal-consensus-on/?fbclid=IwAR0UkCcRBu6ISZohETs-8hn7L_rqsteGaX7w2lhljmwpsxEUgG7HakgHWcY

The materials I submitted with my presentation are attached.

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This entry was posted on October 14, 2021 by in Uncategorized.

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