This article
recently reminded me of this discussion
which was mostly a continuation of this discussion, so I’m posting it here.
Highlights:
And Chief Justice McLachlin told trial judges that they could reject Supreme Court precedents if social change required it.
“This comes from her sense that the law has to continue to live,” said Prof. Berger, associate dean at York University’s Osgoode Hall Law School. “We don’t want a system of law that becomes frozen and rigid.”
Her strong attachment to the Charter of Rights, the stuff of countless speeches she gave around the world, was clear in a 1996 dissent in a case called Cooper v Canada. “The Charter is not some holy grail which only judicial initiates of the superior courts may touch,” she wrote. “The Charter belongs to the people. All law and law-makers that touch the people must conform to it.”
In the last years of the Stephen Harper government, the McLachlin court delivered a series of unanimous or near-unanimous rulings that struck at the core of that government’s agenda; the final blow appeared to be the rejection of Mr. Harper’s nominee for the Supreme Court, Marc Nadon. Soon after, Mr. Harper accused the Chief Justice publicly of trying to contact him and his justice minister to block the appointment. Through her office, she issued statements defending her actions and denying the allegations. The International Commission of Jurists took her side, and she emerged unscathed – a sign of the respect she had gained in the legal community and more broadly among Canadians.