The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

the U.S. are on death row facing capital punishment. 172 The Supreme Court of Canada accordingly concluded that Canada cannot extradite any person to the U.S. who could be punished by death or sentenced to life imprisonment without parole because such sentences violate Charter § 7’s right to life liberty and security of the person. 173 The Court, in 2004, issued an advisory opinion at the Government of Canada’s behest, concluding that the Parliament of Canada had authority to expand marriage rights for same-sex couples. 174 The Court concluded that such a mandate would promote Charter values consistent with religious freedom provided the law did not require religious officials to perform same sex marriage ceremonies. 175 The decision facilitated the depoliticization of same sex marriage rights in Canada, especially compared to the U.S., where the U.S. Supreme Court mandated nationwide same-sex marriage in a jurispru dentially incoherent manner that has divided and politicized the Court. 176 Unlike the U.S., which protects hate speech against historically persecuted racial and ethnic minorities under the First Amendment’s Speech Clause, the Canadian Supreme Court has done the opposite and concluded that the Charter’s guarantee of freedom of expression is not so broad as to protect hate speech. 177 In Keegstra, James Keegstra, an Alberta public school teacher was convicted of violating Criminal Code § 319(2) that prohibits “wilful promotion of hatred against identifiable groups” after he taught children that the Holocaust was fabricated and that Jews were evil. 178 The Supreme Court of Canada affirmed the conviction and concluded that the Charter § 2(b)’s protection of freedom of expression was not so broad as to protect hate speech. 179 172 Death Penalty Information Center, Size of Death Row by Year , https://deathpenalty info.org/death-row/overview/size-of-death-row-by-year (last visited Dec. 27, 2025). 173 United States v. Burns, [2001] S.C.R. 287 174 Reference re Same-Sex Marriage, [2004] 3 SCR 698 175 Id.

176 Obergefell v. Hodges , 576 U.S. 644 (2015). 177 Brandenburg v. Ohio , 395 U.S. 444 (1969) 178 R. v. Keegstra, [1990] 3 SCR 697 179 Id.

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