Constitutional Cases 2008: An Overview

This paper examines the major constitutional decisions of the Supreme Court of Canada in the 2008 calendar year. The Court handed down a total of 74 judgments in 2008, just 12 (or 16 per cent) of which were constitutional cases. Ten of these were Charter cases, while the other two dealt with federalism issues. A full 7 of the 10 Charter claims succeeded, while one federalism claim was successful. In the most significant section 15 judgment since the Law decision almost a decade earlier, R. v. Kapp brought some much-needed clarification and simplification to equality law. Meanwhile, the Court also released two judgments on the law of search and seizure with respect to sniffer dogs, R. v. Kang-Brown and R. v. M. (A.). Three constitutional decisions engaged the issue of Canada’s role internationally; most significantly, Canada (Justice) v. Khadr eased somewhat the sweeping restrictions that had been placed on the extraterritorial application of the Charter in R. v. Hape. The paper examines all these decisions, as well as the Court’s R. v. B.(D.) decision on young offenders (establishing the presumption of diminished moral blameworthiness of children as a principle of fundamental justice) and the federalism cases of Confédération des syndicats nationaux v. Canada (Attorney General) and 620 Connaught Ltd. v. Canada (Attorney General). The paper also presents a brief analysis of the voting patterns of the judges, before concluding with some reflections on the appointment of Justice Cromwell and the legacy left by his predecessor, Justice Bastarache