With the patriation of the Constitution in 1982, the Supreme Court of Canada (SCC) inherited extraordinary political powers. In response to the Court's expanded power of judicial review, there was a sizeable increase in the number of political actors “intervening” in SCC cases. Scholars of Canadian law and politics are deeply divided on whether civil society participation in the courts—particularly as intervenors—is democratically legitimate. This important debate cannot be settled without an empirical evaluation of who intervenes. This research note provides an analysis of all the Charter cases heard by the SCC between 2013 and 2021. In contrast to the field's dominant theory on interest-group legal mobilization—the Court Party thesis—the findings reveal that equity-deserving interest groups, such as those representing women, have an irregular presence in Court. Instead, powerful actors such as governments and legal associations make up a majority of the “repeat player” intervenors. While further research is warranted, the research note concludes that without the maintenance of sufficient support structures, intervention may be unable to perform a democratizing function.

In December 2022, the Supreme Court of Canada heard arguments in a reference case about the constitutionality of An Act respecting First Nations, Inuit and Métis children, youth and families (the Act). At issue is whether the Act infringes on provincial jurisdiction and changes the constitutional architecture by giving First Nations law governing child welfare the force of federal law. In this short Currents article, we argue that the Supreme Court's consideration of the Act marks a critical juncture in the ongoing relationship between Canadian and Indigenous law. Through an examination of the arguments made before the Supreme Court, we assert that it is essential that the Court move beyond its historical commitments to protecting the Constitution and umpiring jurisdictional disputes and toward a recognition of the failures of the constitutional framework to account for an expansive understanding of inherent rights and inherent jurisdiction, including child welfare.

This article explores normative arguments for mandatory judicial bilingualism. It disentangles the links between the normative reasons advanced for mandatory bilingualism and the correlative level of French that should be expected of judges. To provide empirical anchoring, we construct a bilingualism score of Canadian Supreme Court justices composed of four indicators. The score shows that non-systematic assessments used so far like self-assessments, parliamentary hearings and media coverage are not reliable instruments to predict the level of use of French on the Supreme Court. Also, the score suggests that institutional dynamics have an impact worth studying in more depth. Ultimately, the measurement of functional bilingualism depends first on which linguistic capacity is being measured. This, in turn, depends on the normative reasons supporting the requirement of functional bilingualism. Instead of asking whether French should be mandatory upon appointment, it might be more productive to ask how much French should be required.

The revelation, via a leaked draft, that the Supreme Court of the United States was going to overturn the landmark decision in Roe v. Wade (1973) sparked immediate questions about whether a similar retrenchment of abortion rights could occur in Canada. Key legal, structural, and political cultural factors mitigate the forces of American-style erosion of norms on the Supreme Court of Canada and in our broader politics surrounding abortion rights. Despite this generally optimistic comparative context, complacency about the status of abortion rights in Canada would be unwise. This short Currents article canvasses factors crucial for not only preserving the policy status quo in criminal law (that is, the absence of criminal law abortion regulation in Canada), but also for advancing the scope of abortion rights in the positive sense, as serious barriers to access persist at the provincial level.

Public support is a critical component of any court’s institutional legitimacy. Understanding the roots and durability of such support is therefore crucial. This article uses survey data to explore public attitudes towards Canadian courts from 2008 to 2019. This time period is especially relevant given the comparatively tumultuous relationship between the Supreme Court and the Conservative government of Prime Minister Stephen Harper (2006–2015). Notably, partisanship now appears to be a defining characteristic of court support in Canada, with Conservative Party supporters being less likely to support the courts. While institutional trust is also found to be a strong predictor of court support, this suggests public attitudes towards Canadian courts may no longer be as well shielded from the effects of changing political circumstances as they once were.

Addressing criticism that bail blurs the line between prevention and punishment, the Supreme Court of Canada unanimously agreed “it is time to ensure that bail provisions are applied consistently and fairly” (R v Antic 2017 SCC 27, [2017] 1 SCR 509). Rather than reform bail, this decision simply reaffirmed the existing legal mandate: using the ladder principle, accused must be released with the fewest conditions necessary to prevent them from absconding, reoffending/interfering with the administration of justice, and/or bringing the criminal justice system into disrepute. We analyze 480 bail hearings in Ontario, Canada, that occurred pre- and post- the R v Antic decision. Our results reveal that justices are more attentive to the ladder principle post-Antic, such that more accused are released on their own recognizance than in the past. While post-Antic trends show a reduction in the use of certain behaviour-modifying conditions, bail supervision programs are used more frequently. We discuss the implications of these findings in light of Canada’s “broken bail system.”

The Supreme Court's recent invocation of the “constitutional architecture” in the Senate Reform Reference has led a number of scholars to question the status of constitutional conventions in the legal, as opposed to political, constitution. Has the Court, without expressly saying so, transformed at least some conventions into constitutional law? This would be a serious rupture, not only from existing precedent on the justiciability of conventions but also from the traditional understanding of conventions as binding political rules. In light of this recent scholarly debate, an exploration of the profound consequences of entrenching conventions in the legal constitution is warranted, as it implicates the meaning of constitutional conventions, their creation, their relation to law, and their enforcement. Judicial entrenchment of conventions would be a dangerous violation of the separation of powers and would have negative consequences for the functioning of Canada's system of government and for the future of constitutional change.

In Nevsun Resources Ltd. v. Araya, the Supreme Court of Canada declined to dismiss a series of customary international law claims brought by Eritrean refugees against a Canadian mining corporation for grave human rights abuses committed in Eritrea. In doing so, the Supreme Court opened the possibility of a novel front for transnational human rights litigation: common law tort claims based on customary international law. Under the doctrine of adoption, customary international law is directly incorporated into the Canadian common law. However, Canadian courts have not yet upheld a private right of action for violations of customary international law. Writing for a divided court (5–4), Justice Abella allowed the plaintiffs’ claims to proceed, finding that it is not “plain and obvious” that the plaintiffs’ customary international law claims are bound to fail under either Canada's burgeoning “transnational” or “foreign relations” law, or international law itself. In reaching this conclusion, she offered a unique and overdue reflection on the role of national courts in identifying, adopting, and developing custom. A larger majority of the court (7–2) also rejected outright the application of the act of state doctrine in Canada, tracking several common law systems in limiting the doctrine in favor of human rights litigants.

The Criminal Code of Canada prohibits persons from aiding or abetting suicide and consenting to have death inflicted on them. Together, these provisions have prohibited physicians from assisting patients to die. On February 6, 2015, the Supreme Court of Canada declared void these provisions insofar as they “prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” This declaration of invalidity was scheduled to take effect one year (later extended by six months) after the ruling, to give the government time to put legislation in place. We trace the history of this decision, discuss how it has forever changed the debate on physician-assisted dying, and identify the issues that must be resolved to write the legislation. Of special importance here are the topics of access, safeguards, and conscientious objection.

In history of legal ideas of the last generation in Canada, legal pluralism deserves an important place. There is a Quebec genre in the legal literature on pluralism that, for reasons one might well suspect, is less well-known elsewhere. The scholarship of Professor Jean-Guy Belley, one of the leading figures in the field, is deserving of a wider readership among non francophones. A translation on one of his most important papers, published at a critical moment in his personal development as a scholar, is presented here in the hope of introducing his work to new readers.

In the past two decades the Supreme Court of Canada made apparently contradictory rulings on mandatory retirement. In 1982, the Court ruled that mandatory retirement for firefighters at age 60 violated provincial human rights laws; in 1990, it found that forced retirement for university faculty and others at age 65 was constitutional. An analysis of the decisions shows that the Court relied on the stereotype of older workers as being less competent than younger workers, and failed to provide older workers with protection against age-based discrimination. A number of the key mandatory retirement cases deal with university faculty and may yet have unanticipated consequences, such as strengthening the role of academic tenure. The unwillingness of the Supreme Court to eliminate mandatory retirement means that ad hoc arrangements driven by changing life cycles, employer needs, demographic changes and legislative actions will continue to arise.