Co-authored with Joseph Arvay, Q.C. and Alison Latimer of Arvay Finlay, the paper addresses when and why a trial court should be entitled to revisit a previously decided constitutional issue on the basis of a significant and material change in social and legislative fact. The authors conclude that doctrinal, institutional and remedial considerations all support an approach whereby a trial court would conduct a Charter section 1 analysis on the new factual record, leaving appellate courts to fulfil their traditional function with regard to the both the finding of significant and material change and the section 1 analysis itself.
This paper originally appeared in the Supreme Court Law Review, volume 58 (2012). Reproduced here with permission from the publisher, LexisNexis Canada Inc.