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Tuesday, August 21, 2012

Cameron on 30 years of sec. 2 b of the Charter

The Legal History E-Journal sends notice that Jamie Cameron of Osgoode Hall Law School has posted an article on "A Reflection on Section 2(b)’s Quixotic Journey, 1982-2012", which appears in the Fall 2012 issue of the Supreme Court Law Review has been posted on SSRN.

This is the sort of thing I debate (with myself) about including in this blog. (And sometimes get questioned about.) It's not capital H history, but I think it is relevant to historians.

I probably have mentioned here before that I believe presentism has its place in legal history. Or perhaps it is better to say that history has a place in normative analysis, which is almost necessarily presentist.

Prof. Cameron is a judicial biographer, and as such a historian of judges lives' and works, and a constitutionalist, and therefore a historian (of sorts) of jurisprudence. I mean no disrespect: Professor Cameron does not purport to be doing history qua history, as the venue of publication evinces. And as the abstract makes clear, this piece goes beyond presentism--to futurism in fact. But the acknowledgment that the present is not forever--it is not present for all time--is especially marked in constitutionalists, and to my mind is a welcome change from what Philip Girard calls the conception of timeless past seen in much legal writing, especially in respect to legal subjects in which the common law dominates. This acknowledgement should be encouraged by legal historians. The importance of the past and the fact of the future are to my mind two sides of the same coin.

Here's the abstract, which should illustrate what I mean.

The point of departure for the journey ahead is the journey behind, from 1982 to 2012. This reflection describes s.2(b)’s journey in the first thirty years of the Charter as quixotic: principle led the way at times but too often and too easily was displaced by unsound methodologies. The expressive freedom jurisprudence developed an incoherent methodology that applied content neutrality under s.2(b) but readily upheld content-based limits under s.1 by deferring to perceptions – both legislative and judicial – that certain expressive activities are harmful. Meanwhile, the status of the press and media under s.2(b) remains unclear because the Court has been unwilling to constitutionalize the newsgathering function or acknowledge that interference with that function violates the Charter. By contrast, the Court’s response to open justice – which engages expressive and press interests – produced a methodology that gave strong protection to values of access, transparency, and accountability in the justice system. Having discussed the doctrinal patterns and anomalies of the first thirty years this reflection looks ahead – to offer a more holistic view of s.2(b) which highlights process values, and outline the steps that must be taken demonstrate that the Charter’s guarantees of expressive and press freedom truly matter
Cameron's 'reflection' may not be legal history per se but should be a point of departure for legal historians. She has laid out the 'how' of s.2 b's non-linear journey. Historians can tackle the 'why' of this meandering..

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