Equality & Incrementalism: The Role of Common Law Reasoning in Constitutional Rights Cases
It is often said that the Charter ushered in a progressive new era in Canadian law. When this assertion is made the implication is usually that the common law remains a largely conservative or stabilizing force in Canadian law, and that principled change under the Charter holds more promise than the incrementalism of the common law method. But progressives also know that principled constitutional change carries its share of risks, including the risk that rapid, large-scale constitutional change will be met with backlash from government and from citizens, and that the interests sought to be advanced through constitutional litigation might ultimately be worse off. In this paper we argue that courts are justified in adopting an incremental approach to constitutional cases, but only if that approach is infused with the Charter value of substantive equality. We then analyze (Attorney General) v Bedford, the Ontario Court of Appeal’s recent decision on the constitutionality of the prostitution provisions of the Criminal Code, through the lens of an equality-centered approach to incrementalism. We conclude that the Court of Appeal’s judgment contains serious deficiencies from the standpoint of equality. In particular, the majority leaves intact the one provision that specifically targets street sex workers, leaving the most vulnerable sex workers at risk of criminal prosecution and without a remedy. A proper application of common law method, informed by the Charter values of equality and inclusion, would have led the Court of Appeal to a different result, while still grounding the case in the legitimacy of the common law.
R v. Sinclair: Balancing Individual Rights and Societal Interests Outside of Section 1 of the Charter
The majority judgment in R v Sinclair reflects what the author sees as a problematic trend in the Supreme Court of Canada’s pre-trial legal rights jurisprudence under the Canadian Charter of Rights and Freedoms. In Sinclair, the Court took the novel step of holding that society’s interest in “the investigation and solving of crimes” should be taken into account in determining the scope of the right to counsel under section 10(b). The author explains that such interests are usually left to the justification stage under section 1 of the Charter, but that section 1 is functionally unavailable in the context of many pre-trial legal rights claims. This is because in cases of alleged police misconduct, the state action in question is not authorized either by statute or by common law, so the section 1 requirement that the limits on rights be prescribed by law cannot be met. For this reason, the author argues, courts have sought other ways to incorporate interest balancing into Charter analysis. In some cases they have done so under the “fundamental justice” proviso to section 7, and in others by expanding police authority under the “ancillary powers doctrine”.The author situates the Sinclair decision within the overall jurisprudence on section 10(b), and argues that the Court wrongly imposes an internal limit on section 10(b) in a manner that avoids the rigorous constraints that the Oakes test imposes on the section 1 analysis. The author’s overall conclusion is that Sinclair reflects a judicial encroachment on the role of the legislature and a weakening of the role of the courts as defenders of fundamental rights.
Test security in medicolegal cases: proposed guidelines for attorneys utilizing neuropsychology practice.
In the context of forensic neuropsychological assessments, the professional interaction of law and psychology is viewed primarily as one where the retaining attorney or court dictates its needs to psychologists when resolving legal disputes. While this perspective is conceptually accurate, the positive and practical collaboration of law and psychology also relies on attorneys adhering to basic protections of sensitive psychological assessment procedures and tests. Objective testing is undermined when a practitioner of law engages in actions prior to, during, or following a neuropsychological examination in a manner that threatens the test security. An appreciation among practitioners of law and psychology regarding the necessity of test security is essential. This article reviews attorney actions that can affect test security, proposes a distinction by psychology between appropriate and problematic client preparation for a neuropsychological examination, integrates the available legal precedent regarding test security, and suggests productive measures to protect test security in medicolegal settings.