Behind every great constitutional case, there is a person with a fascinating story.

The Supreme Court decides some of the biggest issues in Canadian society: Do Canadians have the right to assisted suicide? Should same-sex couples be allowed to marry? How far does freedom of religion or freedom of expression go?

In Constitutional Challengers, Adam Dodek has gathered together twenty-six of the most significant constitutional cases, including five major decisions concerning Indigenous rights. Behind every one of these cases is a person who had a problem to solve and ended up entangled in the Canadian judicial system.

Some of these people became crusaders — people who campaigned for a cause and set out to change other people’s views and create broader social change. These individuals, such as sex-workers' rights advocate Terri-Jean Bedford and abortion provider Dr. Henry Morgentaler, are villains to some and heroes to others. But most of the people behind the biggest legal decisions weren’t trying to champion a cause; they were just trying to achieve a result that became much bigger than themselves. They were along for the ride — often a long and convoluted one — in the Canadian justice system. It’s within their journeys, often overlooked by the media, that the true victories and life-altering costs of standing up for one’s beliefs can be found.

• Introduction: People Matter
• Part I - Constitutional Foundations
• Chapter 1: Janey Canuck, Personhood and the Famous Five: Emily Murphy
• Chapter 2: Fighting Racism in Western Canada: Quong Wing
• Chapter 3: Unlikely Champion of the Rule of Law: Frank Roncarelli
• Chapter 4: Equality Shunned: Stella Bliss
• Part II - The Charter of Rights and Freedoms
• Chapter 5: The Most Famous Name in Canadian Constitutional Law: David Oakes
• Chapter 6: A Kid with a Kirpan: Gurbaj Singh Multani
• Chapter 7: Teaching Hate in High School: Jim Keegstra
• Chapter 8: Canada’s Most Notorious Child Pornographer: Robin Sharpe
• Chapter 9: Championing LGBTQ Expression: Jim Deva, Bruce Smyth and the Little Sister’s Bookstore
• Chapter 10: Even Prisoners Have the Right to Vote: Richard Sauvé
• Chapter 11: Abortion Crusader: Dr. Henry Morgentaler
• Chapter 12: A Woman Who Would Not Submit: Chantal Daigle
• Chapter 13: A Right to the Basic Necessities of Life? Louise Gosselin
• Chapter 14: Canada’s Dominatrix: Terri-Lynn Bedford
• Chapter 15: The Right to Die with Dignity: Sue Rodriguez
• Chapter 16: Trial within a Reasonable Time: Elijah Askov
• Chapter 17: Equality in Substance:  Mark Andrews
• Chapter 18: Making Equality Real for LGBTQ People: Delwin Vriend
• Chapter 19: Same Sex Marriage: The Two Michaels
• Chapter 20: Unlikely Equality Militants: Joanne Fraser, Colleen Fox and Allison Pilgrim
• Chapter 21: Educating Their Children in French: Jean-Claude Mahé, Angélique Martel, and Paul Dubé
• Part III – Indigenous Rights
• Chapter 22: Captaining Change for Indigenous Rights: Ronald Sparrow
• Chapter 23: More than Just Selling Salmon: Dorothy Van Der Peet
• Chapter 24: From Wrongful Conviction to Vindicator of Treaty Rights: Donald Marshall, Jr.
• Chapter 25: Never Giving up on Aboriginal Title: Chief Roger William and the Tsilquot`in Nation
• Chapter 26: Constitutionalizing Métis Rights: Harry Daniels
• References
• Acknowledgements
• Photo Credits

Just as every superhero has an origin story, so does every landmark decision from the Supreme Court of Canada. This book shares some of the most compelling tales behind Canada’s most celebrated and notorious legal victories.

We live in an age of great cynicism where many think they can't make a difference, or question the utility of the Charter. Dodek confronts the doubters head on. In Constitutional Challengers, he shows how ordinary Canadians took on the status quo, and using the Constitution, were able to make a difference.

Professor Adam Dodek has the unique ability of taking profoundly complex topics and not just simplifying them, he humanizes them. Reading the personal journey of individuals and their journey through the Canadian legal system was like stepping back into the classroom.

The law of Aboriginal rights and title can be hard to understand, but Constitutional Challengers brings to life the Aboriginal litigants and their stories, explaining in easy to read prose the importance of these decisions to Canada’s legal landscape.

These carefully curated stories, related vividly and with sensitivity, illustrate the impact on our constitution of personal sacrifice and persistence in the defence of our constitutional rights and freedoms. An informative and rewarding read!

Constitutional Challengers is an important contribution to Canadian legal literature that will be of interest to both lawyers and the interested public alike. A must read for anyone interested in the human stories behind some of the most important cases in Canadian constitutional history.

For decades, courts have protected some rights and weakened others. Behind every judicial decision, there's a person who endured the stress, expense and, often, notoriety of being a litigant fighting for change. Often, they could have just walked away. Adam Dodek, one of the country's great law scholars, tells the stories of these determined people with clarity, empathy, and skill.

Canada is defined by its people. This book, Constitutional Challengers by Adam Dodek, demonstrates that our constitution is a reflection of Canadians. It walks through the journey of everyday people who fought for principles, that inevitably has shaped a nation. A must-read to understand the human side of Canada’s constitution.

In his trademark style, Adam Dodek distills complex legal cases and theories into digestible chapters that humanize the most important events in Canadian legal history. The book tells the story of individuals, some of whom are willing heroes, some of whom are vile antiheroes, but all who have had a profound impact on the way Canadian society is organized and governed. It is a perfect mix of legal summary, history, and Canadian pop culture wrapped in easy-to-read pages.

Behind every landmark legal decision shaping Canadian society stands a person. Their names endure, but their stories fade from view. Adam Dodek changes that. With meticulous research, deep insight, and captivating storytelling, he illuminates the human beings at the heart of cases that have transformed Canadian law. These pages reveal the complex journeys of individuals who – often by accident – became catalysts for change. Dodek’s retelling reminds us that the law is not abstract – it is a profoundly human endeavour.

In the midst of these times, Constitutional Challengers is essential and required reading for Canadians of all ages. In it, Dodek and contributors explore many of the unlikely heroes journeys that set the foundation for how we arrived at this moment. Throughout, I found myself newly inspired by the folks who had the bravery to take on their own proverbial Goliaths. This text is a reminder that courage is wielded one small step at a time and an offer to find it when it calls.

Constitutional Challengers is a book that needs to be a required text for all law schools, nationally and internationally. Author Adam Dodek’s inclusion of a chapter on Indigenous rights strongly speaks that Indigenous people matter – Indigenous rights are Indigenous People – we matter! Law students, lawyers, governments and educators need to read and learn from the fundamental historical knowledge well articulated by Adam Dodek.

Adam Dodek is an award-winning professor and the former dean of the University of Ottawa’s Faculty of Law. He teaches and writes about the Canadian Constitution and the Supreme Court of Canada. He has worked at the supreme courts of both Canada and Israel, as well as the US Court of Appeals. He is the author of The Canadian Constitution, 3rd edition, and Heenan Blaikie: The Making and Unmaking of a Great Canadian Law Firm. Adam lives in Ottawa.

• A fascinating story of the people behind some of Canada’s landmark constitutional cases, from a law professor named “one of Canada’s Most Influential Lawyers” by Canadian Lawyer
• From rights and freedoms to structures of government, the Supreme Court of Canada makes important decisions about Canadian society
• Profiles passionate people behind 26 landmark cases, such as: Terri-Lynn Bedford (rights of sex workers), Harry Daniels (Métis rights); Dr. Henry Morgentaler (abortion rights); Famous Five (women's suffrage); Quong Wing (worker rights); Little Sister’s Book & Art (queer rights); Michael Leshner and Michael Stark (same sex marriage); Ronald Sparrow (Aboriginal rights to fish); and more

A great contribution to Canadian legal history, written for regular folks in an engaging, plain-language narrative style that brings to life the people and cases that have shaped our rights.

Introduction: People Matter

The Supreme Court decides cases on big constitutional issues that directly impact the lives of Canadians: Do Canadians have the right to assisted suicide? What rights does a person have when they are arrested on criminal charges? Do women have the right to an abortion? Can the government out-law hate speech or child pornography? It also decides issues of broader principle that indirectly affect Canadians: Are government officials — including premiers and the prime minister — subject to the law? How far does freedom of religion or the freedom to protest go?

Some of these landmark decisions are well known to some Canadians, but most are not. Even less known are the people behind these historic cases that changed the lives of Canadians. Lawsuits are brought by people, by groups, and sometimes by governments. In criminal prosecutions, the state marshals its significant resources against individuals. Some of the people involved in these monumental decisions are heroes, others are villains, a determined few are crusaders, and many are unlikely passengers.

Heroes, Villains, Crusaders (and Passengers)
Most of us have heroes — people we admire for something they did or stood for. We need heroes in our lives and in our society: people to admire, venerate, and celebrate. They make us feel good, and they give us faith that we and our society can do better, and that we can do good. Canada has national heroes like Terry Fox, Rocket Richard, Viola Desmond, David Suzuki, Tommy Douglas, and Rick Hansen, among others. Our heroes can change over time or with the times. Sometimes they fade into history because we forget about them or because we learn things about their past that tarnish our views of them. But we often forget that our heroes are human, not saints. We shouldn’t judge them by a standard of perfection.

We live in a deeply flawed world, in which horrible people have done horrible things over the course of history. Although I have never seen a Canadian on a list of global villains, we have certainly had our share of bad characters. I grew up in Vancouver in the 1980s, when mass murderer Clifford Robert Olson was abducting and killing children. I was a student at McGill University when Marc Lépine murdered fourteen women across town at the École Polytechnique. These killers were the evilest of villains. The villains featured in Constitutional Challengers are people who did things or stood for things most of us find abhorrent, that strike at the core of our values. They aren’t simply distasteful; they are repulsive.

Of course, whether someone is a hero or a villain is a matter of perspective. Prime ministers are often embraced as heroes by some and disdained as villains by others. The labels also change with time and historical perspective. The same applies to groups. In the 1930s and 1940s, a small group of Jehovah’s Witnesses were seen as villains by many in Quebec. Others saw them as an unpopular religious minority that was being unfairly targeted. Today, many see them as heroes for championing civil liberties and freedom of religion against an authoritarian state.

Some heroes or villains are crusaders: people who campaign for a cause and set out to change other people’s views and make broader social change. Dr. Henry Morgentaler was a crusader for abortion rights. James Keegstra was on a crusade to impart his antisemitic views to his students. Terri-Jean Bedford was a crusader for the rights of sex workers, and Harry Daniels was a crusader for Métis rights. These people devoted significant portions of their time or their lives to a cause bigger than themselves.

But most of the people behind landmark legal decisions are not crusaders. I call them passengers because they were carried along by our legal system, often all the way to the Supreme Court. They weren’t championing a cause; they were just trying to achieve a result for themselves that ended up being much bigger than themselves. They were along for the ride — often a long and convoluted one — in the Canadian justice system.

There are different types of passengers. Some people get caught up in the criminal justice system, having been arrested on a criminal charge, and all they want to do is stop the car and get out, however they can. They aren’t trying to change the world, just to get out of trouble. Many of the biggest criminal decisions featured passengers as protagonists. Other passengers were using the justice system as a way to get what they needed or wanted: to become a lawyer as a non-citizen in Canada (Mark David Andrews); to wear a kirpan to school (Gurbaj Singh Multani); or to get married to a same-sex partner (Michael Leshner and Michael Stark).

All of these people are part of the Canadian constitutional story. Readers will reach their own conclusions whether these constitutional challengers are heroes or villains.

An Extremely Brief Constitutional History of Canada
Many stories can be told about Canada’s constitutional history, and they can differ depending on who is telling them, and from what perspective. There are English stories of Canada, and there are French stories, Indigenous stories, immigrant Chinese stories, and so on.

One story from 1867 is the development of Canada’s constitutional independence. Unlike the United States and other countries, Canada was not created through a revolution. Instead, it evolved as an independent country over two centuries. And unlike many other countries, there is no single document in Canada called “the Constitution.” Instead, our Constitution is made up of more than twenty documents, including British and Canadian statutes and orders in council passed by the British Cabinet. One of the most important Canadian constitutional documents is the British North America Act (often simply called the BNA Act), which created the Dominion of Canada in 1867. Canada was no longer a colony, but it was not quite a fully independent country. The BNA Act, a law made by the British Parliament, was concerned mostly with the structure of government: the Crown, the division of powers between the federal and provincial governments, the House of Commons, the Senate, and the courts. It left a lot unwritten. We continued to rely on British constitutional principles, British courts, and the British Parliament for a long time.

The Supreme Court of Canada was created in 1875, but it did not become truly supreme until 1949. Until then, Canadians could appeal decisions of the Supreme Court to the Judicial Committee of the Privy Council in London. That body, the highest court of law in the British Empire, was largely composed of “Law Lords” from the House of Lords who had never set foot in Canada. Civil liberties, like freedom of expression or freedom of assembly, were not protected under the BNA Act.

In 1960, Prime Minister John Diefenbaker enacted the Canadian Bill of Rights, but it was just an ordinary statute that did not stand above other federal laws. And it did not apply to any provincial laws. In cases like Bliss (chapter 4), the Supreme Court gave the Canadian Bill of Rights a narrow and technical interpretation. This fuelled the movement for a constitutionally entrenched bill of rights that would be superior to all laws, federal and provincial — a goal that was achieved in 1982 with the patriation of the Canadian Constitution, the enactment of the Canadian Charter of Rights and Freedoms, and the recognition of certain Indigenous rights (known in the Constitution as “Aboriginal rights”).

Overview of This Book
Constitutional Challengers is divided into three parts. Part I tells the stories of several cases that contributed to the making of our Constitution. Some, like Roncarelli v. Duplessis (1959), are celebrated as great wins for big constitutional principles like the rule of law. But as you will read in chapter 3, the person at the centre of this case — Montreal restaurateur Frank Roncarelli — lost a lot along the way. Other cases, like Bliss, are considered losses and are not widely known, even in legal circles. But the determination of Stella Bliss in bringing her case all the way to the Supreme Court paved the way for the constitutional protection of equality rights in the Canadian Charter of Rights and Freedoms in 1982.

Part II includes cases under the Canadian Charter of Rights and Freedoms. Some of these featured high-profile personalities like abortion crusader Henry Morgentaler, child pornographer Robin Sharpe, and Canada’s most famous dominatrix, sex worker Terri-Jean Bedford. Others, high-profile as they were, had protagonists who were not well known, though their last names may be: David Oakes, the most famous name in Canadian constitutional law, and Elijah Askov, whose name became synonymous with delays in our criminal justice system. Other protagonists achieved brief notoriety during their cases but returned to lives of relative obscurity: Chantale Daigle captured the interest of the media when she fought an injunction obtained by her exboyfriend to prevent her from having an abortion; Delwin Vriend became a lightning rod for social debate over gay rights when he was fired from his job in Alberta for being gay and the Supreme Court ruled in his favour. In almost all of these cases, the legal rule established by the Supreme Court lives on, but knowledge of the people involved has faded.

Part III tells the stories of people and nations who fought for constitutional recognition of Indigenous rights. There was little mention of Indigenous Peoples in our Constitution before 1982. In the British North America Act, 1867 (now the Constitution Act, 1867), the federal Parliament was given the power to make laws for “Indians and lands reserved for Indians.” Until 1982, therefore, Indigenous persons, nations, and communities were constitutional objects, treated as persons or groups to be regulated. With the enactment of the Constitution Act, 1982, they became constitutional actors. The new Constitution recognized “Aboriginal Rights” in section 35, and it allowed the participation of Indigenous leaders in certain discussions on amending the Constitution. This part tells the stories of Indigenous activists, like Donald Marshall Jr. and Harry Daniels, who fought for the rights of their communities, the Mi’kmaq and Métis. It includes the story of the Tŝilhqot’in, who never relinquished their claim to their land and who succeeded in obtaining the first declaration of Aboriginal title under section 35 of the Constitution Act, 1982.

Each of the people profiled in this book mattered. Each of them had an impact on the legal system and on Canadian society. I hope you enjoy their stories.CA