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Articles 1 - 26 of 26
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Re-Charting The Remedial Course For Section 11(B) Violations Post-Jordan, Andrew Pilla, Levi Vandersteen
Re-Charting The Remedial Course For Section 11(B) Violations Post-Jordan, Andrew Pilla, Levi Vandersteen
Osgoode Hall Law Journal
In R v Jordan, the Supreme Court of Canada adopted a new framework for establishing violations of the right to be tried within a reasonable time under section 11(b) of the Charter. It did not, however, adopt a new approach to the remedy applicable thereafter. Since the 1987 decision R v Rahey, the only remedy for unreasonable delay has been a stay of proceedings. This article contends that this “automatic stay rule” must be revisited post-Jordan. It does so by conceptualizing Jordan as a shift from an “interest balancing” framework—where individual and societal interests are …
Unreasonable Disagreement?: Judicial–Executive Exchanges About Charter Reasonableness In The Harper Era, Matthew A. Hennigar
Unreasonable Disagreement?: Judicial–Executive Exchanges About Charter Reasonableness In The Harper Era, Matthew A. Hennigar
Osgoode Hall Law Journal
Assessments of “reasonableness” are central to adjudicating claims under several Charter rights and the section 1 “reasonable limits” clause. By comparing Supreme Court of Canada rulings to facta submitted by the Attorney General of Canada to the Court, this article examines the federal government’s success under Prime Minister Harper at persuading the Supreme Court of Canada that its Charter infringements in the area of criminal justice policy are reasonable, and when they fail to do so, on what grounds. The evidence reveals that the Conservative government adopted a consistently defensive posture in court, never conceding that a law was unreasonable, …
Musings And Silences Of Chief Justice William Osgoode: Digest Marginalia About The Reception Of Imperial Law, G. Blaine Baker
Musings And Silences Of Chief Justice William Osgoode: Digest Marginalia About The Reception Of Imperial Law, G. Blaine Baker
Osgoode Hall Law Journal
This article focuses on musings and silences in the margins of Canadian Chief Justice William Osgoode’s late-eighteenth-century law library, to understand the role he assigned to Westminster-based imperial law in the transmission of British justice to the colonies. It concludes that this role was limited, mostly by Osgoode’s greater commitment of time and energy to legislative and executive branches of government than to the judiciary, and by his sometimes cavalier impatience with English courts and legal commentators.
Conservatives, The Supreme Court Of Canada, And The Constitution: Judicial-Government Relations, 2006–2015, Christopher Manfredi
Conservatives, The Supreme Court Of Canada, And The Constitution: Judicial-Government Relations, 2006–2015, Christopher Manfredi
Osgoode Hall Law Journal
Three high-profile government losses in the Supreme Court of Canada in late 2013 and early 2014, combined with the government’s response to those losses, generated a narrative of an especially fractious relationship between Stephen Harper’s Conservative government and the Court. This article analyzes this narrative more rigorously by going beyond a mere tallying of government wins and losses in the Court. Specifically, it examines Charter-based invalidations of federal legislation since 2006, three critical reference opinions rendered at the government’s own request, and two key judgments delivered in the spring of 2015 concerning Aboriginal rights and the elimination of the long-gun …
Aboriginal And Treaty Rights And Violence Against Women, John Borrows
Aboriginal And Treaty Rights And Violence Against Women, John Borrows
Osgoode Hall Law Journal
Violence against Indigenous women is a crisis of national proportions. Unfortunately, Indigenous peoples have been prevented from arguing that Indigenous communities are a constitutional site of activity for dealing with such violence. This article suggests that Aboriginal and treaty rights under section 35 of the Constitution could play a significant role in ensuring that all levels of government are seized with the responsibility for dealing with violence against women. This article explores how section 35 could be reinterpreted in ways that place issues of gender and violence at the heart of its analysis.
Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard
Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard
Osgoode Hall Law Journal
This article explores a growing emphasis on process issues in the elaboration of constitutional rights and freedoms, focusing on the Canadian Charter of Rights and Freedoms. In a diverse range of contexts, judges are framing constitutional rights and freedoms in terms of the processes and practices they require, rather than in terms of specific constitutionally mandated substantive outcomes. Thus, constitutional rights have been interpreted to require a duty to negotiate, a duty to consult, a duty to accommodate, and entitlements to participate in democratic governance. The growing emphasis on processes and practices is positive to the extent that it resonates …
The Charter At Thirty, Michael Ignatieff
The Charter At Thirty, Michael Ignatieff
Osgoode Hall Law Journal
No abstract provided.
Rights Adjudication In A Plurinational State: The Supreme Court Of Canada, Freedom Of Religion, And The Politics Of Reasonable Accommodation, Sujit Choudhry
Rights Adjudication In A Plurinational State: The Supreme Court Of Canada, Freedom Of Religion, And The Politics Of Reasonable Accommodation, Sujit Choudhry
Osgoode Hall Law Journal
A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejected the section 2(a) claims, and the Supreme Court of Canada overturned its decision. Second, the Supreme Court has often divided on national lines with one or more francophone judges from Quebec writing a concurrence or a sharp dissent. Moreover, francophone judges from outside Quebec have also broken ranks with their colleagues. The cleavages on …
The Charter 25 Years Later: The Good, The Bad, And The Challenges, Beverley Mclachlin
The Charter 25 Years Later: The Good, The Bad, And The Challenges, Beverley Mclachlin
Osgoode Hall Law Journal
This year, as we celebrate the 25th anniversary of the adoption of the Charter, journals and newspapers are replete with evaluations. Some are positive, some less so. Some are downright critical. Today, I would like to offer my reflections on the good news and the bad news about the Charter,a quarter-century on.
Sharpening The Dialogue Debate: The Next Decade Of Scholarship, Kent Roach
Sharpening The Dialogue Debate: The Next Decade Of Scholarship, Kent Roach
Osgoode Hall Law Journal
The first part of this commentary examines the roles of coordinate construction in which legislatures act on their own interpretation of the constitution, second look cases in which the courts judge the constitutionality of a legislative reply to a judicial decision, and various constitutional remedies. The second part examines some differences in emphasis between the author's approach to dialogue and that taken by Hogg and his co-authors with respect to the justification of the judicial role in the dialogue, the relation between Charter dialogue and common law constitutionalism, and the proper interpretive approach to section 7 of the Charter. Three …
The Day The Dialogue Died: A Comment On Sauve V. Canada, Christopher P. Manfredi
The Day The Dialogue Died: A Comment On Sauve V. Canada, Christopher P. Manfredi
Osgoode Hall Law Journal
In Sauvé v. Canada (2002) a sharply divided Supreme Court of Canada nullified the inmate disenfranchisement provision of the Canada Elections Act. One of the more important aspects of the majority decision by Chief Justice McLachlin is her refusal to let the concept of dialogue take her down the path of judicial deference. This commentary examines the chief justice's reasons for not taking this path and explores how these reasons reveal the limitations of the dialogue metaphor as originally articulated by Peter Hogg and Allison Bushell. The commentary concludes that any meaningful concept of legislative-judicial dialogue must recognize a coordinate …
The Ideal Victim, The Hysterical Complainant, And The Disclosure Of Confidential Records: The Implications Of The Charter For Sexual Assault Law, Lise Gotell
Osgoode Hall Law Journal
This article explores the current state of Canadian law on the production and disclosure of complainants' records to reflect upon the implications of the Canadian Charter of Rights and Freedoms for Canadian sexual assault law and jurisprudence. Some scholars assert that the Supreme Court's decision in R. v. Mills, upholding section 278 of the Criminal Code governing access to complainants' records, constitutes an erosion of accuseds' rights and an unjustified compromise of constitutional standards. By contrast, this article demonstrates that R. v. Mills is a highly contradictory decision that can be read as creating an interpretation of section 278 that …
Using The Charter To Stop Racial Profiling: The Development Of An Equality-Based Conception Of Arbitrary Detention, David M. Tanovich
Using The Charter To Stop Racial Profiling: The Development Of An Equality-Based Conception Of Arbitrary Detention, David M. Tanovich
Osgoode Hall Law Journal
Do the police use race as a proxy for criminality, particularly, in drug cases? If so, is this a rational discriminatory practice that is based on who the usual offender is or an offensive exercise of racial prejudice? What are the consequences for those communities targeted by the police? This article investigates these questions that have gone unanswered for too long in Canada. After offering a definition of racial profiling, evidence is presented that suggests that the practice is rampant in the United States and is likely practiced by some Canadian police forces, particularly, in cities with large visible minority …
Disarming Canadians, And Arming Them With Tolerance: Banning Firearms And Minimum Sentences To Control Violent Crime--An Essay On An Apparent Contradiction, Helene Dumont
Osgoode Hall Law Journal
In an article published in French in 1997, the author offered reflections on feminism and criminal law that would allow for a better control of violent crime, without Parliament having to resort to excessively severe sentences. In this respect, she argued that there was no contradiction in supporting the radical ban of firearms in Canada, while opposing a minimum sentence of four years under the Firearms Act, which currently affects approximately ten serious Criminal Code offences. After setting out her position in favour of the "disarmament" of Canadians, the author argued that minimum sentences of four years were unconstitutional. Such …
Searching For Smith: The Constitutionality Of Mandatory Sentences, Kent Roach
Searching For Smith: The Constitutionality Of Mandatory Sentences, Kent Roach
Osgoode Hall Law Journal
The jurisprudence of the Supreme Court of Canada on the constitutionality of mandatory minimum sentences, from R. v. Smith to R. v. Latimer, is reviewed and assessed in light of relevant developments in constitutional law and sentencing. These include the Supreme Courts increasing interest in constitutional minimalism and corresponding reluctance to rely on hypothetical offenders and facial declarations of invalidity. The manner in which the Court's increasing concern for crime victims and fault levels has been used to justify upholding mandatory sentences is examined. The author also relates this jurisprudence to trends in sentencing, including an increasing acceptance of mandatory …
The Death Penalty, Mandatory Prison Sentences, And The Eighth Amendment's Rule Against Cruel And Unusual Punishments, Jamie Cameron
The Death Penalty, Mandatory Prison Sentences, And The Eighth Amendment's Rule Against Cruel And Unusual Punishments, Jamie Cameron
Osgoode Hall Law Journal
The text of section 12 of the Canadian Charter of Rights and Freedoms and the Eighth Amendment to the United States Constitution prohibit cruel and unusual punishment in language that is similar but not identical. Still, in considering constitutional restrictions on punishment, the deviations of the Supreme Court both focus on the concept of gross disproportionality between the offence committed and the state’s response. Despite the appearance of similarity, this article maintains that differences in the American law of sentencing explain why Canada ought not follow or adopt the United States approach to minimum sentences.
Securing Accountability Through Commissions Of Inquiry: A Role For The Law Commission Of Canada, Robert Centa, Patrick Macklem
Securing Accountability Through Commissions Of Inquiry: A Role For The Law Commission Of Canada, Robert Centa, Patrick Macklem
Osgoode Hall Law Journal
Focusing on the Government of Ontario's unwillingness to call a public inquiry into the death of Dudley George, an Aboriginal protester, and the Government of Canada's willingness to interfere with an inquiry into the deployment of Canadian forces to Somalia, this article argues that governments appear increasingly reluctant to support a commission of inquiry into a public crisis even where it can serve as a catalyst for addressing larger and more pressing concerns of institutional and policy reform. It first addresses "start-up problems" associated with the fact that the decision to appoint a commission of inquiry lies within the sole …
The Constitutional Legacy Of Chief Justice Brian Dickson, Robert J. Sharpe
The Constitutional Legacy Of Chief Justice Brian Dickson, Robert J. Sharpe
Osgoode Hall Law Journal
Chief Justice Brian Dickson played a central role in the elaboration of the fundamental values of the Canadian Constitution. He took a balanced approach to federalism, favouring neither federal nor provincial claims and inviting cooperation through overlapping jurisdiction. Dickson transformed the rule of law from a background value to an operative constitutional principle. His judgments on the rights of minorities reflect a remarkable empathy for the plight of the disadvantaged. Democracy informed all aspects of his constitutional thinking. Dickson rejected the contention that judicial review is anti-democratic, and his constitutional legacy reflects a sustained effort to harmonize all four fundament …
Secret Proceedings In Canada, Ian Leigh
Secret Proceedings In Canada, Ian Leigh
Osgoode Hall Law Journal
National security and constitutionalism are often thought to be fundamentally incompatible. Recent reforms in Canada involve creative attempts to recognize constitutional rights to fair procedure within processes in which individuals' rights are in conflict with state security interests, such as security clearance, deportation, or access to information. The procedures examined in this article include in camera and ex parte review by Federal Court judges and the use of the Security Intelligence Review Committee. The analysis draws on interviews with participants and compares these procedures with other situations in which restrictions upon open justice have faced Charter challenge, especially under sections …
Second Chances: Bill C-72 And The Charter, Isabel Grant
Second Chances: Bill C-72 And The Charter, Isabel Grant
Osgoode Hall Law Journal
This paper examines the legislative response to the Supreme Court of Canada's decision in R. v. Daviault. The author argues that Bill C-72, which limits the defence of extreme intoxication, is constitutional because of its strong underpinnings in equality. The author reviews the statistics on violence against women and the role of intoxication in that violence to illustrate why the defence of intoxication raises issues of sex equality. The author argues that a court assessing the constitutionality of Bill C-72 should consider this strong foundation in equality and the fact that the Bill is the result of a careful balancing …
Police Implementation Of Supreme Court Of Canada Charter Decisions: An Empirical Study, Kathryn Moore
Police Implementation Of Supreme Court Of Canada Charter Decisions: An Empirical Study, Kathryn Moore
Osgoode Hall Law Journal
Little empirical research has been done on the Charter's impact on the public policy process. This paper presents the results of an empirical research study designed to fill that gap. The study examined the manner in which a municipal police force and the RCMP implemented changes to procedures following two Supreme Court of Canada Charter decisions. The paper concludes that, while steps have been taken to develop a process by which Supreme Court decisions are implemented, the process would be improved if one body were allocated responsibility for the provision of interim information to the police.
The Principles Of Fundamental Justice: The Constitution And The Common Law, J. M. Evans
The Principles Of Fundamental Justice: The Constitution And The Common Law, J. M. Evans
Osgoode Hall Law Journal
This article examines the application of the principles of fundamental justice in section 7 of the Charter to administrative law, and in particular its relationship to non-constitutional grounds of judicial review. The author argues that in this area of the law the common law should generally be regarded as the source of the basic tenets of our legal system that section 7 has been said to embody. The author suggests that the traditional grounds of judicial review of administrative action represent the courts' accommodation of individual rights and the collective interest, and thus cover much the same ground as the …
Ties That Bind?: The Supreme Court Of Canada, American Jurisprudence, And The Revision Of Canadian Criminal Law Under The Charter, Robert Harvie, Hamar Foster
Ties That Bind?: The Supreme Court Of Canada, American Jurisprudence, And The Revision Of Canadian Criminal Law Under The Charter, Robert Harvie, Hamar Foster
Osgoode Hall Law Journal
Chief Justice Dickson has suggested that Canadian jurists should consult American authority in Charter cases, but with care. The authors look at how the Court has followed this advice in its own criminal decisions rendered prior to March 1989, in which American authority is cited in less than 50 percent of the cases. The authors conclude that, in some significant areas, the Court has interpreted the interests of the accused more broadly than the American Supreme Court does and has on occasion done so without citing divergent U.S. precedent. The effect of sections 1 and 24(2) of the Charter on …
Interpreting The Charter Of Rights: Generosity And Justification, Peter W. Hogg
Interpreting The Charter Of Rights: Generosity And Justification, Peter W. Hogg
Osgoode Hall Law Journal
The author argues that there is a close relationship between the scope of the rights guaranteed by the Charter and the standard of justification required under section 1. The broader the scope of a right, the more relaxed the standard of justification must be. A generous interpretation of a right is incompatible with the stringent Oakes standard of justification. However, a purposive interpretation of a right, confining the right to conduct that is worthy of constitutional protection, is compatible with a stringent standard of justification.
Cross Cultural Reflections: Teaching The Charter To Americans, Jamie Cameron
Cross Cultural Reflections: Teaching The Charter To Americans, Jamie Cameron
Osgoode Hall Law Journal
In this article, the author discusses a course in Comparative Constitutional Jurisprudence that she taught at Cornell Law School in the winter semester of 1989. She is particularly interested in the way this class of American students responded to the Supreme Court of Canada's interpretation of the Charter. She presents her reflections on differences between Canadian and American constitutional culture through a discussion of the decisions in The Motor Vehicle Reference, R. v. Morgentaler, and The French Language Case.
Recent Amendments To Canadian Lottery And Gaming Laws: The Transfer Of Power Between Federal And Provincial Governments, Judith A. Osborne, Colin S. Campbell
Recent Amendments To Canadian Lottery And Gaming Laws: The Transfer Of Power Between Federal And Provincial Governments, Judith A. Osborne, Colin S. Campbell
Osgoode Hall Law Journal
Through an examination of recent amendments to the lottery and gaming provisions of the Criminal Code and of the law reform process involved in those amendments, this article demonstrates the unique structure of Canadian gaming laws and challenges the constitutional validity of provincial regulation as an interdelegation of power.