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Developments In Constitutional Law: The 1988-89 Term, A. Wayne Mackay, Dianne Pothier

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This article canvasses the major developments from the 1988-89 term of the Supreme Court of Canada.

In terms of Charter jurisprudence there were major developments concerning equality rights, mobility rights, freedom of expression, and section 7.

More generally, there were also important developments in the federal trade and commerce power and broad hints as to the Supreme Court's leanings in relation to the federal spending power. There is clarification on how both federal and provincial laws affect federal undertakings, and re-affirmation of the ancillary nature of powers in relation to language. The Court reassesses the tests of when a provincial …

Towards An/Other Legal Education: Some Critical And Tentative Proposals To Confront The Racism Of Modern Legal Education, Richard F. Devlin Frsc

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It seems to me that by drawing on the myth of Prometheus, Harry Arthurs has struck an important chord that we may find will resonate throughout the papers that are to be presented today. Particularly, by emphasizing the idea of being "unbound," President Arthurs has opened up a conversation that is premised upon the connection between law and freedom. I propose to take up and expand that conversation and, hopefully, to give it a significantly different orientation. Specifically, I want to identify and attempt to come to terms with an issue which, I fear, does not engender sufficient concern within …

Nomos And Thanatos (Part A), The Killing Fields: Modern Law And Legal Theory, Richard F. Devlin Frsc

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The essay is to be published in two parts. Part A, "The Killing Fields .. . ", is a criticai inquiry into the way in which the "disciplines" of law and legal theory rationalize violence. I begin my discussion with a Celtic triptych - a series of three narratives - that is designed to provide the reader with some background information in order that he or she may acquire a sense of the perspective and experiential context from which this essay emerges.

Next, I briefly outline the central role which violence has played in structuring our received tradition of jurisprudential …

Legal Education As Political Consciousness-Raising Or Paving The Road To Hell, Richard F. Devlin Frsc

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The Journal of Legal Education did all legal educators a great service when it published "Women in Legal Education-Pedagogy, Law, Theory, and Practice," a symposium that highlights feminist criticisms of, innovations in, and desiderata for legal education. The contributors challenge some of our deepest convictions about what it means to be a law teacher. Appropriately, all the contributors are women. It is they who have experienced most keenly-and have been harmed by the gendered nature of the legal educational process. The gendered nature of legal education is not, however, a "women's only" issue; it is not solely "their problem," "their …

Freedom Of Expression: Is It All Just Talk?, A. Wayne Mackay

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In this article Wayne MacKay argues that effective interpretation of section 2 of the Charter of Rights and Freedoms requires the weighing of real world impacts beyond the traditional liberal parameter of judicial decisions. The usual judicial unwillingness to acknowledge "freedoms" as opposed to "rights" limits governmental legal action while not recognizing political and economic barriers to freedom of expression. The trend toward limiting protected expression both at the definitional stage and through section 1 reasonable limits reflects this cautious approach.This article examines who the early beneficiaries of freedom of expression have been: those affected by criminal sanctions and those …

Law's Centaurs: An Inquiry Into The Nature And Relations Of Law, State And Violence, Richard F. Devlin Frsc

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The unfortunate truth claim which I wish to pursue in this paper is that the deep structural presupposition (which is almost universal amongst lawyers and clearly dominant among lay people) that law and violence stand in stark opposition is false. I argue that violence is endemic to any conception of modern law, that it is authorized by the legislature and/or executive, sanctioned by the judiciary, and perpetrated by what are euphemistically called the forces of law and order - the police, the military et cetera. In brief, I wish to posit the disquieting thought that legal violence is a sine …

Ventriloquism And The Verbal Icon: A Comment On Professor Hogg's "The Charter And American Theories Of Interpretation", Richard F. Devlin Frsc

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In this brief comment I offer some critical reflections on Professor Hogg's proposed approach to Charter interpretation. I suggest that Professor Hogg's attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that "interpretivism" is explanatorily inadequate, yet on the other he refuses to accept "non-interpretivism" for he realizes that it has the potential to unmask the politics of law. I argue that Hogg's third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates …

Baby M: The Contractual Legitimation Of Misogyny, Richard F. Devlin Frsc

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The emergence of what have become known as the "new reproductive technologies" is a phenomenon which is neither essentially good nor essentially bad. On the one hand, such developments provide opportunities for social choice, family planning and procreative autonomy which, until recently, were impossible. This expansion of horizons is clearly a "good". However, on the darker side, as a community, we must be concerned about the directions which such opportunities might take. There are very real dangers involved, including excessive genetic engineering, raised expectations of perfect "products" with the correlative dissatisfaction with the "imperfect", inequality of access to these new …

Constructive Murder And The Charter: In Search Of Principle, A. Wayne Mackay, Isabel Grant

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This article explores the principle of "constructive" murder and how it interacts with the sentencing and the parties sections of the Criminal Code. The authors re-examine these issues in light of the Charter. They conclude that constructive murder has no place in a post-Charter Canada.

The Elwood Case: Vindicating The Educational Rights Of The Disabled, A. Wayne Mackay

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The guarantees of the Charter of Rights affect the definition of education for the disabled. The case of Elwood v. Halifax County - Bedford District School Board, a landmark case in educational rights of disabled children in Canada, has major implications for educational practice.

One of the earliest and most controversial Charter of Rights challenges to the existing educational structure has come from parents of disabled children. Disabled children and their parents are blazing a trail to define educational rights in Canada, and the process is giving some shape to the the elusive concept of equality enshrined in the …

Twisting The Tourniquet Around The Pulse Of Conventional Legal Wisdom: Jurisprudence And Law Reform In The Work Of Robert A Samek, Richard F. Devlin Frsc

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Despite some lingering reservations, after a reading and re-reading, analysis and counter-analysis, critique, reflection and synthesis of over thirty articles and two books, I now feel comfortable with Samek's work and confident enough to present this reconstruction of his theory in order that his thoughts will be more accessible to those who might be interested

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

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Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

Fairness After The Charter: A Rose By Any Other Name?, A. Wayne Mackay

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On at least a short term basis the Charter of Rights and Freedoms has made a significant dent in the Canadian legal landscape. Not only has it produced a veritable cottage industry for practising lawyers and legal academics - it has raised some of the most fundamental questions about which institutions should shape public policy in Canada. The courts have a bold new mandate to measure the acts of the legislative and executive branches of the government against the new standards of the Charter. When these agencies are found wanting, they are to be checked and their illegal actions invalidated. …

Prosecutorial Control In Canada: The Definition Of Attorney-General In Section 2 Of The Criminal Code, Camille Cameron

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In 1969, as a result of the redefinition of Attorney-General” in section 2 of the Criminal Code, the federal Attorney-General assumed an increased role in criminal prosecutions within the provinces. This new role has resulted in various challenges to the constitutional validity of the amendment — the provinces claim that the new definition is an encroachment upon the administration of justice power given to them by section 92(14) of the British North America Act while the federal government relies on its criminal law power to justify the amendment. The author examines the 1969 amendment in light of sections 91(27) and …