Justice Bastarache, the Charter and Judging: Principled Pragmatism and the Centrality of Equality

Wayne MacKay

Abstract


The legacy of Justice Bastarache in respect to the evolution of the Charter of Rights and in particular the concept of equality, is an impressive one. Assessing this legacy is both an opportunity and a challenge. It is an opportunity to view the evolution of the Charter through a human and personal lens and to reflect on the role of an individual judge in shaping the law. It is also a challenge to evaluate Justice Bastarache’s conception of equality because it is pervasive in his Charter analysis and multi-faceted in nature. This challenge is heightened by the fact that other contributors are dealing with criminal law, Aboriginal rights, language rights and even section 15 itself — the core equality guarantee. I shall explore the role that equality plays in Justice Bastarache’s decisions outside the above mentioned areas and through selected cases identify some trends and contributions and ultimately come to some conclusions about his equality legacy and judicial style.


This paper was co-authored with Victoria Young, Dalhousie University.


Keywords


Constitutional Law; Judges

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