Potential Struggle Between the Legislative and Judicial Branches of Canada: A Contestational Approach to Interpreting the Canadian Charter of Rights and Freedoms Through Bedford & PHS Community Services

This project examines how two recent controversial Canadian Supreme Court decisions, Bedford and PHS Community Services, combined with their legislative responses, demonstrate competing interpretations of the Canadian Charter of Rights and Freedoms between the legislative and judicial branches of the state. Using Bonnie Honig’s account of agonism, this paper creates a contestation-centred approach that emphasizes disagreement between these branches to illustrate how, despite what the judicial dialogue literature insists, a final interpretation of the Charter is not possible. The remainder of this project demonstrates how the legislature’s responses to these cases could have been more democratic by emphasizing the contestation taking place between it and the judiciary over the interpretation of the Charter. Specifically, it argues that the contestation in these instances could have been made more accessible by the legislature justifying its decision to resist the judiciary’s interpretations of the Charter, or, in exceptional circumstances, invoking the notwithstanding clause.