A Recent History of Government Responses to Constitutional Litigation

Abstract

The 2006 Canadian federal election, which brought the Conservative Party to power for the first time, shifted the dynamics of constitutional advocacy. The government adopted a combative litigation posture, channeled through aggressive political messaging and uncompromising choices. Since the return to power in 2015 of the Liberal Party, many expect a more respectful attitude towards litigants, the courts and the Constitution. Certainly, the new government appears more positively disposed to constitutional rights and judicial review. As a result, Canadians are less likely to witness an openly hostile attitude towards the judiciary. That said, it is impossible to predict the precise way that the new government will respond to constitutional litigation.

The observations that follow largely focus on government responses to final judicial settlement of constitutional disputes. But there is, as well, much to be gleaned from how a government conducts itself during litigation. While the latter issue does not feature prominently in this paper, it informs some of the concluding comments.