Law Commons^™

Deeper Into The Knight: Exploring Deans Knight And Its Effects On The Canadian Gaar, Jinyan Li, Marshall Rothstein, Steve Suarez, Jeffrey Trossman

Articles & Book Chapters

This article discusses the most recent decision of the Supreme Court of Canada in Deans Knight Income Corporation v. Canada (2023) and explores its implications for the Canadian GAAR.

Public Order Policing: A Proposal For A Charter-Compliant Legislative Response, Jamie Cameron, Robert Diab

Articles & Book Chapters

This article offers a brief response to the Final Report of the Public Order Emergency Commission by two authors who provided expert reports to the Commission. We focus on Commissioner Rouleau’s recommendation that the provinces and the federal government create a “major event management unit” to ensure “integrated command and control” of large events, and that governments clarify the scope of police power to create exclusion zones and to impose other limits on protest and assembly. We argue that nothing short of legislation on point would suffice to address problems of coordination among police agencies and the lack of clarity …

Walking The Line: The Politics Of Federalism And Environmental Change, Allan C. Hutchinson

Articles & Book Chapters

This short paper looks at the Greenhouse Gas Pollution Pricing Act decision through a wider and more critical jurisprudential lens. In so doing, I demonstrate that the courts are no less political than legislatures in making decisions about who has the constitutional capacity to decide on how the challenges of climate change should be met. This is not so much a criticism of the Supreme Court of Canada, but an inevitable feature of constitutional law. After introducing the traditional and received explanation of the differences between political decision-making and judicial decision-making, I delve deeper into the Court's opinions and show …

Insulating The Church: Ethiopian Orthodox Tewahedo Church Of Canada St. Mary Cathedral V. Aga And The Suppression Of Public Law In The Construction Of Religious Communities, Rabiat Akande, Faisal Bhabha

Articles & Book Chapters

In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, the Supreme Court of Canada undertook to grapple with the question of whether, when, and to what extent courts should get involved in the internal decisions of religious groups where there are allegations of procedural unfairness. This paper approaches Aga with an interest in the issue of state regulation of religion through law. The paper (1) reviews and assesses the Court's judgment; (2) summarizes and analyzes the 12 intervener submissions, many of which were made by religious groups likely to be affected by the Court's eventual judgment; and …

Resetting The Foundations: Renewing Freedom Of Expression Under Section 2(B) Of The Charter, Jamie Cameron

Articles & Book Chapters

The 40^th anniversary of the Canadian Charter of Rights and Freedoms on April 17, 2022 is a time for reckoning, and an opportunity to ready s.2’s fundamental freedoms for the future. In particular, this article offers a moment of pause to invest in s.2(b)’s guarantee of expressive freedom and its renewal. The discussion begins by addressing s.2(b)’s “fault lines”, which are embedded in the jurisprudence at both stages of the analysis – breach as well as justification. What then follows is a proposal for renewal that begins, under s.2(b), with a theory or principle of freedom and a revised …

Resetting The Foundations: Renewing Freedom Of Expression Under Section S.2(B) Of The Charter, Jamie Cameron

Articles & Book Chapters

The 40^th anniversary of the Canadian Charter of Rights and Freedoms on April 17, 2022 is a time for reckoning, and an opportunity to ready s.2’s fundamental freedoms for the future. In particular, this article offers a moment of pause to invest in s.2(b)’s guarantee of expressive freedom and its renewal. The discussion begins by addressing s.2(b)’s “fault lines”, which are embedded in the jurisprudence at both stages of the analysis – breach as well as justification. What then follows is a proposal for renewal that begins, under s.2(b), with a theory or principle of freedom and a revised …

Rearguard Or Vanguard? A New Look At Canada’S Constitutional Act Of 1791, Philip Girard

Articles & Book Chapters

The Constitutional Act 1791, which provided representative governments to Upper and Lower Canada, has often been regarded as a reactionary document. Here, a comparison with the constitutions of the eastern colonies of British North America as well as the pre-revolutionary constitutions of the Thirteen Colonies reveals a variety of ways in which the 1791 Act was more liberal and more committed to the popular element of the constitution than its comparators. The significance of the statutory form of the 1791 Act is emphasised and contrasted with the much less secure position of the popular element under prerogative constitutions. Significant concessions …

Intergenerational Environmental Justice And The Climate Crisis: Thinking With And Beyond The Charter, Dayna Scott, Garance Malivel

Articles & Book Chapters

Inspired by the analysis developed in the article “Coming of Age in a Warming World: The Charter’s Section 15 Equality Guarantee and Youth-Led Climate Litigation,” by Nathalie Chalifour, Jessica Earle, and Laura Macintyre, this commentary explores the concept of intergenerational environmental justice in the climate crisis. Our central contribution is to advance a relational conception of intergenerational environmental justice, which we argue can overcome some common objections to thinking about justice and rights in “generational” terms. This analysis supports climate litigation efforts on Charter grounds, best conceived in our view as discrimination against young and future generations. Yet it also …

Toronto’S 2018 Municipal Election, Rights Of Democratic Participation, And Section 2(B) Of The Charter, Jamie Cameron, Bailey Fox

Articles & Book Chapters

In 2018, the City of Toronto’s municipal election overlapped with a provincial election that brought a new government to office. While the municipal election ran for a protracted period from May 1 to October 22, the provincial election began on May 9 and ended about four weeks later, on June 7.On July 27, after only a few weeks in office, the provincial government tabled the Better Local Government Act (BLGA) and proclaimed the Bill into law on August 14.The BLGA reduced Toronto City Council from 47 to 25 wards and reset the electoral process, mandating that the election proceed under …

Introduction – 2019 Constitutional Cases At The Supreme Court: Up Close And In Person, Sonia Lawrence

Articles & Book Chapters

From the vantage point of Summer 2020, 2019 seems almost a mirage. The conditions created across Canada by government and individual responses to COVID-19 were all but unimaginable when 2019 drew to a close, and the legal issues that preoccupy those interested in constitutional and public law now revolve around rapidly evolving rules and policies designed to protect public goods like health and health care. Questions of profound significance to constitutional lawyers, such as the location of limits on state powers, the appropriate roles and relative competencies of courts and governments, the place of state law in creating the good …

Book Review - The Tenth Justice: Judicial Appointments, Marc Nadon, And The Supreme Court Act Reference By Carissima Mathen & Michael Plaxton, Jamie Cameron

Articles & Book Chapters

This short book review discusses The Tenth Justice: Judicial Appointments, Marc Nadon, and the Supreme Court Act Reference, by Professors Mathen and Plaxton. The “tenth justice” is Justice Marc Nadon, who was appointed from the Federal Court of Appeal to the Supreme Court of Canada. The appointment inspired the Supreme Court Reference and conclusion by a majority of the Court that their colleague – as Nadon was already sworn in – was not eligible to be appointed to one of Quebec’s three positions on the Court. The Tenth Justice offers an excellent, high-level primer on Justice Nadon’s appointment and …

A Plumber With Words: Seeking Constitutional Responsibility And An End To The Little Sisters Problem, Alison M. Latimer, Benjamin L. Berger

Articles & Book Chapters

Joe Arvay sometimes described his work as a lawyer as being a “plumber with words”. We think what he meant was that he strived to offer tangible solutions to concrete problems. In other words, while it’s good to know what the law says, and what legal enthusiasts think about how the law operates, Charterbreaches affect real people, most of them not lawyers. It is the lived experience of the law that ultimately ought to draw our concern, energy, and talents.If you want to bend the law towards justice, you need to focus remedial attention on what the law actually …

Canada’S Amendment Rules: A Window Into The Soul Of A Constitution - Review Essay Of Richard Albert, Constitutional Amendments: Making, Breaking, And Changing Constitutions, Jamie Cameron

Articles & Book Chapters

This Review Essay forms part of a special issue of the Manitoba Law Journal (forthcoming) dedicated to Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions. Years in the making, Constitutional Amendments explains how amendment rules define a constitution’s integrity, ensuring its longevity by allowing and even inviting formal changes to its text. Albert’s work is prodigious and monumental, connecting abstract issues of textual design to the follies of constitutional amendment over diverse variables of time and place. This Review focuses selectively on Constitutional Amendments and its implications for Canadian amendment constitutionalism, exploring Albert’s view that amendment rules expose …

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 …

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

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

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

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 …

Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White

Articles & Book Chapters

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and …

Assessing Adler: The Weight Of Constitutional History And The Future Of Religious Freedom, Benjamin Berger

Articles & Book Chapters

This article approaches Adler v. Ontario as a distinctively useful perch from which to survey the history and future of the constitutional interaction of law and religion. The case is positioned at a provocative place in the arc of the development of this interaction and the article uses the reasons in Adler to expose and explore some themes that shape not only our religion jurisprudence, but Canadian constitutionalism more generally. The article begins by examining what the majority's heavy reliance on religion's place in constitutional history suggests about the competing logics at work in Canadian constitutional life. That discussion leads …

Interim Relief: National Report For Canada, Trevor C. W. Farrow, Jonathan Silver

Articles & Book Chapters

Evolving litigation poses many challenges to litigants and their counsel before final adjudication. Canadian courts have fashioned various remedies to meet these challenges in order to preserve and maintain the court's authority to secure a just result.

The Scc's Dilemma: What To Do With Interveners?, Richard Haigh

Articles & Book Chapters

At a conference in 2016, Osgoode Hall Law School Dean Lorne Sossin made the following offhand comment: “I think it is possible to tell the most important Supreme Court of Canada cases by the number of interveners that were involved.” I assume what he meant--and granted, it was somewhat tongue in cheek--that the more interveners there are in a case, the more important the case.

The comment intrigued me. Is it true? It is such a simple proposition. Intuitively, it seems right: more parties would wish to involve themselves in those cases that have larger impacts, or that represent more …

What Humility Isn’T: Responsibility And The Judicial Role, Benjamin Berger

Articles & Book Chapters

In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice …

The Impact Of St Catherine's Milling, Karen Drake

Articles & Book Chapters

St Catherine’s Milling may seem like a peculiar choice as one of the three constitutional cases that helped to define Canada as a nation, given that most of the legal principles affirmed by Lord Watson, writing for the Privy Council, have been overruled. This paper identifies the principles from St Catherine’s Milling which are still good law, and argues that the logic that underlies and shapes those principles is the logic of the doctrine of discovery and the principle of terra nullius.

Jurists have articulated different versions of the doctrine of discovery and disagreed about its precise requirements. At …

Federalism, The Environment And The Charter In Canada, Dayna Scott

Articles & Book Chapters

This Chapter reviews the key jurisprudential developments in relation to the division of powers in Canada, exploring how the shared jurisdiction over the “environment” created by sections 91 and 92 of the Constitution has historically and continues to shape environmental law and policy. In addition to this federal-provincial struggle, the chapter considers the current trend towards local regulation of environmental matters according to the principle of ‘subsidiarity’, and the growing recognition of the ‘inherent jurisdiction’ of Indigenous peoples. The contemporary dynamics are explored through two critical policy case studies highlighting barriers to environmental justice: safe drinking water on reserves, and …

Justiciability, Access To Justice And The Development Of Constitutional Law In Canada, Lorne Sossin, Gerard J. Kennedy

Articles & Book Chapters

Concentrating on Canadian experience, specifically litigation under the Canadian Charter of Rights and Freedoms (the ‘Charter’), this article seeks to reconcile the access to justice benefits of summary procedures with the government litigant’s duty to act in the public interest (or as a ‘model litigant’) and uphold the rule of law. Though acknowledging the benefits that can result from the use of summary procedures to end litigation, the authors observe that compliance with strict requirements in procedural law are frequently dispensed with in the Charter context. In fact, summary procedures can have a devastating effect on the development of Charter …

Why Coywolf Goes To Court, Signa A. Daum Shanks

Articles & Book Chapters

This article is an effort influenced by previous works considered part of "trickster" discourse. But unlike other trickster stories meant to illustrate First Nations’ contents and processes, this presentation creates a Métis-specific example of trickster methodology and knowledge. Similar to the historic role Métis individuals have had in Canadian history, this effort contains a type of "translator" system within its citations so that the main story parallels information about trends in Canadian legal analysis. By having this format, it is hoped that those less familiar with Métis courtroom struggles will gain insight into how the pursuit of Métis constitutionalism both …

Constitutionalising The Senate: A Modest Democratic Proposal, Allan C. Hutchinson, Joel I. Colón-Ríos

Articles & Book Chapters

The Senate Reference did not provide an ideal situation for clarifying the nature and limits of the power of constitutional reform in Canada. The facts gave the Court no choice but to recognize the fundamental role that the Senate plays in the Canadian constitutional order, and therefore to place some of its main features outside the scope of section 44 of the Constitution Act, 1982, even if they ran contrary to basic democratic values. For example, in order to explain that the implementation of consultative elections would alter the constitution’s basic structure, the Court was forced to construe in a …

A Response, Fay Faraday, Eric Tucker

Articles & Book Chapters

Faraday and Tucker respond to criticism about their work Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (2012).

Children Of Two Logics: A Way Into Canadian Constitutional Culture, Benjamin Berger

Articles & Book Chapters

Through an analysis of the Canadian case, this article explores the tension between the universal and the particular in modern constitutional imagination, arguing that the points of friction between these two “logics” of constitutionalism are invaluable entry points into understanding the defining features of various constitutional cultures. The article argues that to understand Canadian constitutional culture, both at the structural level and also in the finer strokes surrounding given issues, one must appreciate that Canadians are the children of two constitutional logics: that of the local, the particular, and harmonious relations between diverse communities achieved through political compromise, and that …