What it is

From the publicly-reviewable questionnaire responses of Malcolm Rowe, recommended nominee and recent appointee to the Supreme Court of Canada:

To what extent does the role of a Supreme Court of Canada Justice allow for the reconciliation of the need to provide guidance on legal questions of importance to the legal system as a whole with the specific facts of a case which might appear to lead to an unjust result for a party?

•Most decisions of the Supreme Court serve the dual function of providing a definitive statement of the law and also doing justice according to law in the immediate dispute. (In criminal appeals as of right, often the purpose is limited to doing justice in the immediate dispute.) The dispute between the parties offers a platform for the Court to speak authoritatively as to the law on issues that warrant such a statement. The Court having set out a general statement of relevant law, it then has to apply the law to the facts of the case. One would expect that a just result would follow from the proper application of the law to the facts of a given case. Where the court is giving effect to the Charter or developing the common law, it has considerable leeway in decision-making. The Court’s role is more constrained as regards decisions of the legislature and of the executive, e.g. a Minister.

•The legislature may have enacted provisions of a statute that give rise in a given case to a sense of harshness or unfairness. The Supreme Court, like any court, looks to the rules of statutory interpretation. As well, where circumstances indicate, the Court will consider whether the statutory provisions are constitutional, having regard to the Charter. Beyond this, it is the duty of the Court to give effect to the decision of the legislature. Similarly, concerning a decision of the executive, if it is accordance with law, then the Court has no role to substitute its view of the public good for that, for example, of a Minister. Each branch of government has a role that should be respected by the others, under the rule of law.


Beyond this…


About brucelarochelle

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