Emerging Constitutional Norms: Continuous Judicial Amendment of the Constitution—The Proportionality Test as a Moving Target

The so-called proportionality test of modifications to the Canadian Constitution are discussed. The Constitution is, at times, described as a moving target for change

Les Représentations de «Société Libre Et Démocratique» a la Cour Dickson : La Rhétorique Dans le Discours Judiciaire Canadien

The expression free and democratic society is the focus of our research, which sheds light on the contribution of the Supreme Court to the constitutionalization of this concept. Leaving aside the institutional and psycho-social factors, the study confirms the hypothesis that the interpretation of this expression will vary (1) according to the conceptions formerly held by the individual judges and (2) with respect to the factors favoured by a rhetorical Perelman-like analysis, which considers the factual and judicial context and the expectations of both the universal and specific audiences. At the Supreme Court level, the expectations of the latter should prevail over the former. Our results reveal that in addition to these factors others come into play: a third audience consisting of the Court itself the invariable core of the judges\u27 thinking; and real circumstances which undoubtedly represent the most serious factor, proving detrimental to the legal coherence necessary to meet the expectations of the specific audience

Les Représentations de «Société Libre Et Démocratique» a la Cour Dickson : La Rhétorique Dans le Discours Judiciaire Canadien

The expression free and democratic society is the focus of our research, which sheds light on the contribution of the Supreme Court to the constitutionalization of this concept. Leaving aside the institutional and psycho-social factors, the study confirms the hypothesis that the interpretation of this expression will vary (1) according to the conceptions formerly held by the individual judges and (2) with respect to the factors favoured by a rhetorical Perelman-like analysis, which considers the factual and judicial context and the expectations of both the universal and specific audiences. At the Supreme Court level, the expectations of the latter should prevail over the former. Our results reveal that in addition to these factors others come into play: a third audience consisting of the Court itself the invariable core of the judges\u27 thinking; and real circumstances which undoubtedly represent the most serious factor, proving detrimental to the legal coherence necessary to meet the expectations of the specific audience