The Court's Mulligan: A Comment on Canada (Attorney General) V. Hislop by Review of Constitutional Studies

Book Review : The Court's Mulligan: A Comment on Canada (Attorney General) V. Hislop

By Review of Constitutional Studies

  • Publication Date: 2009-07-01
  • Genre: Law

Book Review

I. INTRODUCTION With a few exceptions, the Supreme Court of Canada's decision in Canada (Attorney General) v. Hislop (1) has been the subject of little academic scrutiny. This is somewhat surprising given the attention that the Court's earlier gay rights cases garnered (Vriend v. Alberta (2) and M. v. H., (3) to mention two blockbusters). Scholarship on Hislop has thus far been limited to fairly technical issues: the strategic dimensions of remedial litigation (4) and class actions, (5) the significance of the Court's comments on the doctrine of qualified immunity, (6) and the case's potential impact on tax law. (7) As those topics suggest, Hislop is viewed by academic commentators as primarily interesting to lawyers and other judges, and not at all like the compelling rights-defining cases that normally attract public controversy. This is unfortunate because the technical question--concerning the availability of a retroactive remedy for unconstitutionally excluded Canada Pension Plan (8) beneficiaries--has provoked an interesting and revealing disagreement between Justice Bastarache and the rest of the Supreme Court bench over the Court's proper role in interpreting the Constitution. This article attempts to highlight this aspect of the decision in order to demonstrate that Hislop is a significant case for understanding the nature of judicial precedents and the attendant costs of deviating from them.

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