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Full-Text Articles in Law
Indigenous Constitutionalism And Dispute Resolution Outside The Courts: An Invitation, Karen Drake
Indigenous Constitutionalism And Dispute Resolution Outside The Courts: An Invitation, Karen Drake
Articles & Book Chapters
The Supreme Court of Canada's jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe constitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast between Anishinaabe constitutionalism's and liberalism's foundational norms and dispute resolution procedures. This article argues that a hybrid institution—combining features of both liberalism and Indigenous constitutionalism—would merely reproduce …
A Narrowing Field Of View: An Investigation Into The Relationship Between The Principles Of Treaty Interpretation And The Conceptual Framework Of Canadian Federalism, Joshua Ben David Nichols
A Narrowing Field Of View: An Investigation Into The Relationship Between The Principles Of Treaty Interpretation And The Conceptual Framework Of Canadian Federalism, Joshua Ben David Nichols
Osgoode Hall Law Journal
In its recent decisions in Tsilhqot’in Nation and Grassy Narrows, the Supreme Court of Canada has significantly altered the position of Indigenous peoples within the structure of Canadian federalism. This article sets out to investigate the basis for the Court’s jurisdiction to change this structure. Its approach is historical, as it covers judicial treaty interpretation from St Catherine’s Milling to Grassy Narrows. By contextualizing the most recent change in light of the last 250 years of treaty making, we can see how the notion of Crown sovereignty has become entangled with the Westphalian model of the state (i.e., the state …
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 …
Big M’S Forgotten Legacy Of Freedom, Jamie Cameron
Big M’S Forgotten Legacy Of Freedom, Jamie Cameron
Articles & Book Chapters
Part of a collection of papers on section 2’s “forgotten freedoms” (forthcoming (2020), 100 S.C.L.R.(2d)), “Big M’s Forgotten Legacy of Freedom” returns to the Supreme Court of Canada’s foundational concept of freedom as the absence of coercion or constraint. That early and important legacy of freedom under the Charter failed to inspire and influence the evolution of section 2, especially section 2(b)’s guarantee of expressive freedom and section 2(d)’s guarantee of associational freedom. This paper both claims and demonstrates that section 2’s fundamental freedoms have been less meaningful as a result. In doing so, it places emphasis on …
Compelling Freedom On Campus: A Free Speech Paradox, Jamie Cameron
Compelling Freedom On Campus: A Free Speech Paradox, Jamie Cameron
Articles & Book Chapters
The provincial governments in Ontario and Alberta have directed colleges and universities to adopt and comply with a mandatory, state-prescribed free speech policy modelled on the US-based Chicago Statement on Principles of Free Speech. Compelling a campus free speech code is as serious a violation of s.2(b) of the Charter of Rights and Freedoms as a prohibition would be. Apart from and in addition to their consequences for university governance and autonomy, these mandatory free speech policies are part of a rise in mechanisms – like Bill 21’s compelled secularity, Ontario’s mandatory gas pump stickers, the Law Society of Ontario’s …
The Contrasting Fates Of French Canadian And Indigenous Constitutionalism: British North America, 1760-1867, Philip Girard
The Contrasting Fates Of French Canadian And Indigenous Constitutionalism: British North America, 1760-1867, Philip Girard
Articles & Book Chapters
In the century after the fall of New France, both Indigenous peoples of Canada and French Canadians could be described as colonised peoples. Yet the treatment of each group's pre-existing laws and the ways in which each found its constitutional demands recognised (or not) varied considerably. In spite of significant rebellions in 1837-1838, French Canadians went on to achieve a high degree of autonomy within the province of Quebec in the British North America Act 1867. Meanwhile, intercultural legal arrangements with Indigenous peoples, such as the Covenant Chain, which could be termed constitutional, were gradually undermined, ignored and forgotten. This …
Consultation, Cooperation And Consent In The Commons' Court: "Manner And Form" After Mikisew Cree Ii, Craig M. Scott
Consultation, Cooperation And Consent In The Commons' Court: "Manner And Form" After Mikisew Cree Ii, Craig M. Scott
Articles & Book Chapters
In Mikisew Cree II, a large majority of the Supreme Court of Canada took the view that the Constitution Act, 1982, section 35 duty to consult and accommodate cannot constrain the legislative process, and that the legislative process includes bill preparation activities carried out by Ministers and by officials in the executive. My limited purpose in this article is to show how the question of participatory constraints on legislative processes that affect Indigenous legal interests has more been deflected than resolved by this ruling -- at the same time as this deflection has productive potential by virtue of how it …