ABSTRACT
This chapter explores that the shift in judicial assertiveness from Morgentaler to Vriend reflects a change in the justices’ strategic calculations. It argues that judicial institutions were uncertain in 1988 about the nature and extent of their authority to enforce the Charter against democratic institutions. The chapter focuses on a theory of judicial strategy. It examines the broader institutional context that affected judicial strategy in both cases. The chapter analyzes the strategic calculations that may have led to restraint in Morgentaler and activism in Vriend. In 1989, the Court decided its first equality rights case, V. Andrews Law Society of British Columbia. The framing of Canada’s 1982 constitution left the institutional authority of courts and legislatures ambiguous with respect to the politics of rights. Consequently, when it entered the moral and political minefield of abortion policy, a majority of the justices chose a rationale for nullification that left Parliament with several options short of legislative override.
