Law Commons^™

Judging The Limits Of Cooperative Federalism, Eric M. Adams

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

I have often wondered whether the history of Canadian constitutional law might best be taught by traversing a footbridge of metaphors. In the “Two Row Wampum” of treaty relations, the “compact” of Confederation, the “watertight compartments” and “balance” of the division of powers, the “living tree” of the Canadian Charter of Rights and Freedoms, and the “architecture” of our parliamentary structures, Canada’s Constitution has found expression in constructs of the imagination as much as commands of the text. Discerning meaning from abstract constitutional provisions invariably requires a turn to external principles and ideas to guide interpretation and to shape a …

The Promise And Limits Of Cooperative Federalism As A Constitutional Principle, Warren J. Newman

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

In this article, I shall address the Supreme Court of Canada’s recent jurisprudence on cooperative federalism and its promise for the future, from the perspective of federalism as an underlying constitutional principle. In its jurisprudence, particularly over the past decade, the Court moved from an ostensibly neutral view on what form federalism, as a normative concept, should take, to one of not just tolerating but actively encouraging flexible and cooperative federalism. There are limits to the ambit of cooperative federalism as an organizing principle, and it must be balanced with other principles, including parliamentary sovereignty and the separation of powers, …

Carter V. Canada (Attorney General), The Constitutional Attack On Canada’S Ban On Assisted Dying: Missing An Obvious Chance To Rule On The Charter’S Disability Equality Guarantee, David Lepofsky

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Is it important only to legal scholars that the Supreme Court decided Carter v. Canada (Attorney General), — the landmark, assisted dying case — under the wrong Charter provision? In this case, when the Court struck down the Criminal Code provision that makes it a crime to assist another person to end their life (section 241(b)), it found an unjustified violation of Charter section 7. This provision guarantees that no one will be “deprived” of their “life, liberty or security of the person”, except “in accordance with the principles of fundamental justice.” The Court did not consider whether the impugned …

Thinkable: The Charter And Refugee Law After Appulonappa And B010, Colin Grey

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Appulonappa and its companion case, B010, lie at the confluence of many debates about global migration and its governance. Both cases arose following the arrival in Canada of hundreds of Sri Lankan Tamils on two cargo boats, the M.V. Ocean Lady in October 2009 and the M.V. Sun Sea in August 2010. These were asylum seekers who came to Canada on dangerous vessels because more secure, less costly routes were shut to them. They were also illegal immigrants whose success entering Canada might fuel more migrant smuggling, a transnational criminal phenomenon with the potential to undermine national security. Safe to …

Henry V British Columbia: Still Seeking A Just Approach To Damages For Wrongful Conviction, Emma Cunliffe Dr.

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

“Henry v. British Columbia (Attorney General) was the first case in which a claimant sought damages under section 24(1) of the Canadian Charter of Rights and Freedoms for breaches of rights that led to a wrongful conviction and imprisonment. In its 2015 decision, the Supreme Court of Canada clarified the criteria for the award and quantum of such damages. In June 2016, Hinkson C.J.S.C. awarded $8,086,691.80 in damages to Ivan Henry in compensation, special damages and “to serve both the vindication and deterrence functions of s. 24(1) of the Charter”. This award reflected Hinkson C.J.S.C.’s findings that: Crown Counsel intentionally …

A False Start In Constitutionalizing Lawyer Loyalty In Canada (Attorney General) V. Federation Of Law Societies Of Canada, Amy Salyzyn

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

In Canada (Attorney General) v. Federation of Law Societies of Canada, a majority of the Supreme Court of Canada surprised many legal observers by choosing to recognize a new principle of fundamental justice pursuant to section 7 of the Canadian Charter of Rights and Freedoms: a lawyer’s duty of commitment to a client’s cause. In this article, I critique the majority’s choice to recognize this new principle of fundamental justice after first reviewing the Court’s reasons and their background.

At issue in this case was the constitutionality of the federal government’s statutory regime for preventing and investigating money laundering and …

Kahkewistahaw First Nation V. Taypotat: An Arbitrary Approach To Discrimination, Jonnette Watson Hamilton, Jennifer Koshan

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

The Royal Commission on Aboriginal Peoples (“RCAP”) acknowledged education as essential to both enhancing the lives of Aboriginal individuals and achieving their collective goals. Education can improve the capacities and talents of Aboriginal citizens to assume the responsibilities of operating self-governing and community structures. In Kahkewistahaw First Nation v. Taypotat, these 20-year-old conclusions were the focus of the first paragraphs of both the factum of the Chief and Council of the Kahkewistahaw First Nation and the unanimous judgment of the Supreme Court of Canada.

Education was also a key component of a more recent commission, the Truth and Reconciliation Commission …

Caron, Carter, And Bedford At The Supreme Court Of Canada: Society Can Change But History Will Always Stay The Same, Nicolas M. Rouleau

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Good facts make good law. And at the Supreme Court of Canada, good social and legislative facts can change the law. Between December 2013 and November 2015, the Supreme Court released Bedford, Carter, and Caron, three decisions that ruled on the same three constitutional issues the Court had ruled on 20 to 30 years earlier. In the Prostitution Reference, Rodriguez, and Mercure, the “first versions” of each case, the Court had refused to find in favour of the claimants. Neither the factual records nor the interpretation of the relevant provisions allowed the Court to establish the existence of their constitutional …

R. V. Nur: A Positive Step But Not The Solution To The Problem Of Mandatory Minimums In Canada, Janani Shanmuganathan

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Over the last several decades, Parliament has steadily increased the use of mandatory minimum sentences. Canada now ranks second in the world — behind only the United States — in the number of offences it has that carry mandatory minimums. In R. v. Nur, the Supreme Court of Canada declared unconstitutional the three-year mandatory minimum sentence for a first conviction for possession of a firearm. Prior to Nur, the Court had not struck down a mandatory minimum sentence since R. v. Smith, decided 30 years earlier. In the time between Smith and Nur, the Court was asked to consider the …

Constitutional Amendment After The Senate Reference And The Prospects For Electoral Reform, Michael Pal

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

The new federal government committed that 2015 would be the last election under the first past the post (“FPTP”) system used since 1867. If the federal electoral system does change, it will be a break from the recent politics of reform. Over the last decade, numerous attempts to reform provincial electoral systems have failed. The additional potential hurdle facing the federal government, which was not relevant for the provinces, is the uncertainty relating to the rules on constitutional amendment, particularly in light of the Reference re Senate Reform.

The central questions I address in this article are whether federal electoral …

Constitutional Constraints On Electoral Reform In Canada:Why Parliament Is (Mostly) Free To Implement A New Voting System, Emmett Macfarlane

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Having promised that the 2015 national election would be the last conducted under the first-past-the-post (“FPTP”) electoral system, the federal government has initiated efforts to find a replacement. A national debate about the various alternatives to FPTP will undoubtedly continue, but a fundamental issue concerns whether Parliament faces any constraints on its authority to implement electoral reform. Two distinct concerns present themselves. First, does a change to the electoral system require a constitutional amendment, and if so, would such an amendment require provincial consent under the general amending procedure in Part V of the Constitution Act, 1982? Second, would certain …

Constitutional Cases 2015: An Overview, Lorne Sossin

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This contribution reviews the Constitutional Cases issued by the Supreme Court in 2015. The analysis is divided into three parts. In the first part, as in previous years, I begin with an analysis of the year as a whole, identifying noteworthy statistics or trends. In the second part, I explore some specific Constitutional decisions of the Court – especially those revealing important divergences on the Court around the scope and reach of the Canadian Charter of Rights and Freedoms and the premise of Federalism – in greater detail. I conclude, in the third part, with a discussion of the evolving …

Structural Cooperative Federalism, Kate Glover

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This article considers the status of cooperative federalism as a legal principle in Canadian constitutionalism. It argues that our understanding of cooperative federalism – often called the “modern form” of federalism in Canada – is enriched by looking to constitutional contexts beyond the division of powers. This article focuses on just one of those contexts, that is, it explores the lessons to be learned about cooperative federalism from the text and structure of Part V of the Constitution Act, 1982.

The Pragmatic Limits Of Access To Justice, Hart Schwartz, Anthony Robert Sangiuliano Student-At-Law

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

The Supreme Court of Canada’s Charter jurisprudence often resembles a seesaw. The Court will tilt toward a robust approach that favours individual rights and freedoms only to adjust a short time later when the broader social or economic costs of its expansive jurisprudence become evident. Expansion is followed by contraction. Whether this pattern is best described in terms of “trimming its sails”, taking corrective measures, or simply clarifying doctrinal scope, the Court has teetered to one side and tottered back again on a number of occasions.

The concept of “access to justice” is one example. In 2014 it had been …

Mouvement Laïque Québécois V Saguenay: Neutrality And Narrative, Víctor M. Muñiz-Fraticelli

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

For every constitution there is an epic, for each decalogue a scripture. The controversy over the recitation of prayer at the sessions of the municipal council of the city of Saguenay laid bare the tensions between religious neutrality and historical identity that continue to play out in the constitutional politics of Quebec. At stake is control of the narrative of what Quebec was and is becoming, and thus control of the meaning of those symbols and norms that shape and direct its normative order.

Mouvement laïque québécois v. Saguenay (City) is as much a case about constitutional doctrine as it …

R V Smith And Judicially Reviewing The Scope Of Criminal Law Under The Charter, Christopher Sherrin

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

In R. v. Smith, the Supreme Court of Canada assessed the constitutionality of criminal prohibitions against the possession of marijuana in light of regulations that carved out a medical exception exclusively for dried marijuana. The Court held that the exception was too narrow and declared the criminal prohibitions of no force and effect to the extent that they prohibit a person with a medical authorization from possessing marijuana derivatives for medical purposes.

Smith was the Court’s first real foray into the lengthy saga of medical marijuana Charter litigation and, at first glance, its decision appears to reflect a banal application …

"Chartering" In The Shadow Of Lochner: Guindon, Goodwin And The Criminal-Administrative Distinction At The Supreme Court Of Canada, Steven Penney

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

The distinction between criminal and administrative wrongdoing plays a key role in Canadian public law. Though it functions somewhat differently across domains, the upshot is the same: the state is presumptively entitled, as a principle of statutory and constitutional interpretation, to more favourable procedures for establishing administrative wrongdoing than criminal offending. Conversely, people accused of administrative infractions are presumptively entitled to less protection against state power in the investigative and adjudicative process than those charged with crimes (or in many cases, regulatory offences).

The criminal-administrative distinction has a long pedigree, but has taken on heightened importance since the Charter. The …

The Process Of Electoral Reform In Canada: Democratic And Constitutional Constraints, Yasmin Dawood

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This article considers the process by which electoral reform ought to take place, focusing in particular on the democratic and constitutional constraints that bear on electoral reform. It addresses two inter-related issues: first, whether any particular process, such as a referendum, is required as a normative matter to establish the democratic legitimacy of a given reform; and second, whether a constitutional amendment involving provincial consent is required to implement electoral reform.

This article argues, with respect to the first issue, that while no one process is mandated for electoral reform, it is nevertheless important for the process to be and …