The Scope Of The Possible: Canadian Courts, Emotion, And The Assertion Of Crown Sovereignty

This thesis considers emotion and the role emotion plays in judicial reasoning in three Aboriginal title decisions. The aim of this analysis is to draw to the surface emotional undercurrents and commitments that, together with other currents, impact the direction of judicial reasoning in these cases.

Using methodologies and approaches from the area of law and emotion, this thesis employs close readings of the three Aboriginal title decisions to draw out lacunae in the Supreme Court of Canada’s reasoning. These lacunae reflect fixed assumptions that the Court chooses not to interrogate, such as the Crown’s acquisition of radical title to all land in Canada, and other postures and commitments that impact the Court’s reasoning. The emotions analysis posits that these lacunae give us information about where resistance, aversion, fear, and other emotions arise to reinforce certain narratives and modes of thinking and to prevent engagement with challenging questions.