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Full-Text Articles in Law
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 …
Quebec V A And Taypotat: Unpacking The Supreme Court’S Latest Decisions On Section 15 Of The Charter, Alicja Puchta
Quebec V A And Taypotat: Unpacking The Supreme Court’S Latest Decisions On Section 15 Of The Charter, Alicja Puchta
Osgoode Hall Law Journal
The Supreme Court of Canada’s articulation for the test for discrimination under section 15 of the Charter has undergone numerous permutations over the past twenty-five years. The Supreme Court introduced its latest round of changes in its 2013 decision in Québec (Attorney General) v A and its 2015 decision in Kahkewistahaw First Nation v Taypotat. Together, these two decisions clarified that the appropriate approach to section 15 was not one focused strictly on stereotype and prejudice, but rather on all contextual factors that may inform whether an impugned law violates the norm of substantive equality. This paper critically analyzes the …
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, …
Foreword, Jamie Cameron
Religious Institutionalism In A Canadian Context, Victor M. Muñiz-Fraticelli, Lawrence David
Religious Institutionalism In A Canadian Context, Victor M. Muñiz-Fraticelli, Lawrence David
Osgoode Hall Law Journal
Does freedom of religion protect religious institutions or does it only protect the individual religious conscience? Canadian jurisprudence after the enactment of the Canadian Charter of Rights and Freedoms takes a decidedly individualist turn, deliberately avoiding the question of the rights of religious institutions. This individualist focus neglects the historical trajectory of religious freedom, the social understanding of religious faith by religious adherents themselves, and the institutional structures in which religion emerges and develops (and through which it is ultimately protected). An institutional account of religious liberty can complement the individualist account, as it better explains the legal order, better …
Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin
Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin
Richard Haigh
In "Charter Dialogue Revisited-Or 'Much Ado About Metaphors,"' it is noted that the original idea behind the dialogue metaphor was simply to describe Canada's constitutional structure. Despite this, the metaphor has been criticized for having normative content and influencing courts and legislatures. In this commentary, the authors analyze all Supreme Court of Canada and lower court uses of the dialogue metaphor and conclude that, with some exceptions, the courts have employed the metaphor properly, i.e., descriptively. Since, however, the metaphor can be misapplied-used other than to describe or explain the relationship between the courts and legislatures in Canada-the authors recommend …
Patterning Rights Constitutionalism: Thirty Years With The Charter, Benjamin L. Berger, Jamie Cameron
Patterning Rights Constitutionalism: Thirty Years With The Charter, Benjamin L. Berger, Jamie Cameron
Jamie Cameron
No abstract provided.
Patterning Rights Constitutionalism: Thirty Years With The Charter, Benjamin L. Berger, Jamie Cameron
Patterning Rights Constitutionalism: Thirty Years With The Charter, Benjamin L. Berger, Jamie Cameron
Benjamin L. Berger
No abstract provided.
Losing Relevance: Quebec And The Constitutional Politics Of Language, Emmanuelle Richez
Losing Relevance: Quebec And The Constitutional Politics Of Language, Emmanuelle Richez
Osgoode Hall Law Journal
This article asks whether Quebec has lost relevance in the constitutional politics of language. It proposes a doctrinal analysis of the Supreme Court’s Charter jurisprudence, with an emphasis on the most recent body of case law, and an assessment of its political consequences in the area of language policy in Quebec. The article argues that constitutional review has increasingly protected individual rights over Quebec’s collective right to maintain its language and culture. This can be explained by the move towards an implacable parallel constitutionalism and a redefinition of official minority linguistic rights in the jurisprudence, as well as by the …
Failure To Report: The Manifestly Unconstitutional Nature Of The Human Smugglers Act, Jennifer Bond
Failure To Report: The Manifestly Unconstitutional Nature Of The Human Smugglers Act, Jennifer Bond
Osgoode Hall Law Journal
This paper uses the Human Smugglers Act as a case study of what can happen when a Canadian government tables legislation that is highly controversial not only for reasons of ideology or policy, but also because it almost certainly violates the Charter. The conclusion is twofold: first, that a requirement originally meant to increase government accountability in the face of Canada’s human rights instruments is failing; and second, that this same requirement is now providing the government political cover to deflect legitimate constitutional critique while simultaneously avoiding substantive engagement. The result is an impoverished constitutional dialogue and a misled Canadian …
Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie
Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie
Osgoode Hall Law Journal
Competing theories regarding the development of a “rights revolution” in Canada have appeared in the judicial and constitutional literature in recent years. On the one hand, scholars argue that the profound effects often attributed to the Charter of Rights and Freedoms are substantially overstated, and conventional analyses have overlooked the more important role of changes in what is called the “support structure” for rights. Others have advanced a competing theory that the Charter created an expansion of civil liberties. We take advantage of an extensive dataset on the decisions of the Supreme Court of Canada to provide a more systematic …
Democracy And The Right To Vote: Rethinking Democratic Rights Under The Charter, Yasmin Dawood
Democracy And The Right To Vote: Rethinking Democratic Rights Under The Charter, Yasmin Dawood
Osgoode Hall Law Journal
This article addresses the Supreme Court of Canada’s theory of democracy and the right to vote. After setting forth the Court’s general approach to democracy, I develop a new conceptual framework for the Court’s approach to democratic rights. First, I argue that the Court has adopted a “bundle of democratic rights” approach to the right to vote. By this I mean that the Court has interpreted the right to vote as consisting of multiple democratic rights, each of which is concerned with a particular facet of democratic governance. Second, I claim that the democratic rights recognized by the Court are …
Patterning Rights Constitutionalism: Thirty Years With The Charter, Benjamin L. Berger, Jamie Cameron
Patterning Rights Constitutionalism: Thirty Years With The Charter, Benjamin L. Berger, Jamie Cameron
Osgoode Hall Law Journal
No abstract provided.
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 …
Rights In The Age Of Identity Politics, Avigail Eisenberg
Rights In The Age Of Identity Politics, Avigail Eisenberg
Osgoode Hall Law Journal
In 1982, the Charter of Rights and Freedoms was entrenched in the Constitution at the height of what has come to be known as an era of identity politics. The influence of identity politics on Canadian jurisprudence is evident both in some of the specific rights entrenched in the Charter and in the manner these rights have been interpreted. This paper examines two approaches to Charter interpretation that use the resources of identity politics. On the identity approach, claims individuals and groups make about their identities in the course of advancing rights claims are treated as immutable, non-negotiable facts, rather …
The Charter's Influence Around The World, Mark Tushnet
The Charter's Influence Around The World, Mark Tushnet
Osgoode Hall Law Journal
Over the past several decades, the influence of the United States Constitution and Supreme Court around the world has waned while that of the Canadian Charter and Supreme Court has increased. This article examines several reasons for these changes, including: the relative ages of the constitutions; the US Supreme Court’s recent conservatism; the Canadian Supreme Court’s role in developing the doctrine of proportionality; the US Supreme Court’s interest in originalism; differing structures of constitutional review and judicial supremacy; and the two Courts’ relative openness to transnational influences.
The New Borders Of The Constitutional, Gavin W. Anderson
The New Borders Of The Constitutional, Gavin W. Anderson
Osgoode Hall Law Journal
The key critical constitutional debates of the future are likely—and need—to be very different from those that animated the Charter’s first thirty years. Since 1982, the borders between law and politics, rights and utility, and the public and the private have staked out the main territory contested by critical scholarship. However, these borders now demarcate a restricted landscape, drawing critics onto the ground of normative debate preferred by liberal theory, and leading them to propose, at best, a form of moderate pragmatism. A more promising approach lies in reconnecting constitutional debate to the socio-historical strand of critical theory, as represented …
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 Supreme Court Of Canada And Constitutional (Equality) Baselines, Rosalind Dixon
The Supreme Court Of Canada And Constitutional (Equality) Baselines, Rosalind Dixon
Osgoode Hall Law Journal
In its approach to defining “analogous grounds” for the purposes of subsection 15(1) of the Charter of Rights and Freedoms, the Supreme Court of Canada has adopted an unusual mix of broad and generous interpretation, and high formalism. This article argues that one potential reason for this is the degree of heterogeneity among the nine distinct enumerated grounds in section 15. Heterogeneity of this kind can produce quite different interpretive consequences, depending on whether a court adopts a direct, “multi-pronged,” or a more synthetic, “common denominator,” approach to the question of analogical development. The Court, over time, has implicitly shifted …
Social Justice And The Charter: Comparison And Choice, Margot Young
Social Justice And The Charter: Comparison And Choice, Margot Young
Osgoode Hall Law Journal
At a time of radical inequality, the changes sought by social justice advocacy are urgently needed. Yet repeatedly, courts fail to respond adequately to this challenge. A core issue plagues social justice jurisprudence under sections 7 and 15: the difficulty inevitable in the contemplation and expression of the social and political forms in which oppression and social injustice occur. This problem manifests doctrinally in ways specific to the rights at issue. In section 15 cases, the casting of comparator groups has been deeply problematic, and in both section 15 and section 7 cases, the courts fail to deliver a nuanced …
The Supreme Court Of Canada, Charter Dialogue, And Deference, Rosalind Dixon
The Supreme Court Of Canada, Charter Dialogue, And Deference, Rosalind Dixon
Osgoode Hall Law Journal
For those concerned about the democratic legitimacy of Charter review by Canadian courts, the idea of dialogue offers a promising middle path between the extremes of judicial and legislative supremacy. Current dialogue theory, however, largely fails to live up to this promise of compromise. Instead of distinguishing democratic worries associated with US style, strong-form judicial review, it largely endorses the legitimacy of such review. For dialogue to live up to its original promise, a new theory that more clearly distinguishes Canada from the United States is required. This article offers a new theory of dialogue in which the willingness of …
Prescribed By Law/Une Règle De Droit, Robert Leckey
Prescribed By Law/Une Règle De Droit, Robert Leckey
Osgoode Hall Law Journal
In Multani, the Supreme Court of Canada's kirpan case, judges disagree over the proper approach to reviewing administrative action under the Canadian Charter of Rights and Freedoms. The concurring judges questioned the leading judgment, Slaight Communications, on the basis that it is inconsistent with the French text of section I. This disagreement stimulates reflections on language and culture in Canadian constitutional and administrative law. A reading of both language versions of section 1, Slaight, and the critical scholarship 'reveals a linguistic dualism in which scholars read one version of the Charter and of the judgment and write about them in …
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.
Foreword, Jamie Cameron
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 …
Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin
Does The Observer Have An Effect?: An Analysis Of The Use Of The Dialogue Metaphor In Canada's Courts, Richard Haigh, Michael Sobkin
Osgoode Hall Law Journal
In "Charter Dialogue Revisited-Or 'Much Ado About Metaphors,"' it is noted that the original idea behind the dialogue metaphor was simply to describe Canada's constitutional structure. Despite this, the metaphor has been criticized for having normative content and influencing courts and legislatures. In this commentary, the authors analyze all Supreme Court of Canada and lower court uses of the dialogue metaphor and conclude that, with some exceptions, the courts have employed the metaphor properly, i.e., descriptively. Since, however, the metaphor can be misapplied-used other than to describe or explain the relationship between the courts and legislatures in Canada-the authors recommend …
Taking Dialogue Theory Much Too Seriously (Or Perhaps Charter Dialogue Isn't Such A Good Thing After All), Andrew Petter
Taking Dialogue Theory Much Too Seriously (Or Perhaps Charter Dialogue Isn't Such A Good Thing After All), Andrew Petter
Osgoode Hall Law Journal
This article challenges the thesis of Peter W. Hogg, Allison A. Bushell Thornton, and Wade K. Wright (put forth earlier in this issue) that the frequency of legislative responses to Charter decisions striking down laws, which they refer to as "Charter dialogue," provides evidence that Canada has a weaker form of. judicial review than is thought to exist in the United States. This article also critiques their claim that judicial review is justified by the idea that individuals have rights that cannot be taken away by an appeal to the general welfare'. The author maintains that this claim not only …
Constitutionalism From The Top Down, Grant Huscroft
Constitutionalism From The Top Down, Grant Huscroft
Osgoode Hall Law Journal
Dialogue theory regards judicial interpretation of the Charter as authoritative, and, as a result, denies that continuing disagreement with the courts is legitimate. There is little scope, in other words, for dialogue with the courts in any meaningful sense. The Charter is best understood as establishing strong-form judicial review rather than weak, and legislatures have only as much room to respond to judicial decisions as the courts are prepared to allow.
Dialogue Theory, Judicial Review, And Judicial Supremacy: A Comment On "Charter Dialogue Revisted", Carissima Mathen
Dialogue Theory, Judicial Review, And Judicial Supremacy: A Comment On "Charter Dialogue Revisted", Carissima Mathen
Osgoode Hall Law Journal
By suggesting that we view the judicial-legislative relationship as a dialogue, the authors of "Charter Dialogue" have greatly influenced constitutional debate in Canada. This commentary offers three observations about the authors' latest contribution. First, it queries the continued usefulness of the term "dialogue." Second, it raises concerns with the idea that section 1 of the Charter promotes dialogue, as the term is now explained by the authors. Finally, it queries the authors' perspective on judicial review and their accompanying terminology.