Law Commons^™

Reconciling Reconciliation: Differing Conceptions Of The Supreme Court Of Canada And The Canadian Truth And Reconciliation Commission, Kim Stanton

Journal of Law and Social Policy

This paper considers the concept of "reconciliation" as it is utilized in two fora: the Supreme Court of Canada (the Court) and the Truth and Reconciliation Commission on the legacy of the “Indian residential schools” (TRC). The concept’s development in the Court’s jurisprudence, as compared to the scholarly literature of transitional justice, warrants careful consideration. The Court has used the term in decisions seeking to balance assertions of Indigenous sovereignty in the context of Canadian colonialism. However, this concept of reconciliation is quite different from that which has entered Canadian discourse from the TRC. The author suggests that the vision …

Charter Litigation, Social And Economic Rights & Civil Procedure, Vasuda Sinha, Lorne Sossin, Jenna Meguid

Journal of Law and Social Policy

In this article we consider the scope of social and economic rights litigation under the Charter of Rights and Freedoms with reference to the recent right to housing case, Tanudjaja v Canada (Attorney General). In Tanudjaja, the applicants sought to challenge both Ontario’s and Canada’s housing-related law and policy, under sections 7 and 15 of the Charter. The Ontario Court of Appeal upheld the Superior Court’s decision to strike the Charter application on the basis that a right to housing as pleaded was not justiciable (the Supreme Court of Canada subsequently denied leave to appeal). This article challenges the reasoning …

“Don’T Want To Get Exposed”: Law’S Violence And Access To Justice, Sarah Buhler

Journal of Law and Social Policy

For many members of marginalized communities, law is all too often an author of oppression, and the justice system is a site not of justice but of threat and harm. Yet most access to justice projects in Canada devote themselves to the task of rendering law and the justice system more available to the public without a serious consideration of these critical and troubling community-held insights. In this article, I draw on qualitative interviews conducted with community members in Saskatoon and the literature on law’s violence to argue that those who are concerned about access to justice must come to …

Small Claims Court: A Vehicle For Social Change And The Case For Equitable Relief, Shelly Mcgill

Journal of Law and Social Policy

Small Claims Court has a long history in debt collection and a popular image as the “People’s Court.” This article examines a little known emerging function as a forum where pressing social issues are given voice and social policy is implemented on the grassroots level. The Ontario Small Claims Court is a recent recipient of this social policy mandate. Over the past fifteen years, the Ontario Legislature and Court of Appeal have directly or indirectly given the Small Claims Court new responsibility for implementing modern social policy in the areas of child supervision, discrimination, and privacy. This article examines the …

Troubling Trends In Canada’S Immigration System Via The Excluded Family Member Regulation: A Survey Of Jurisprudence And Lawyers, Jamie Liew, Prasanna Balasundaram, Jennifer Stone

Journal of Law and Social Policy

When a law purports to combat a problem, many of us take for granted that it is effective in doing so, and that it is not harming people. This article looks at one regulation that, while aiming to protect the integrity of the immigration system, in fact erodes the humanitarian and compassionate objective of reunifying families. Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations imposes a life-time ban on sponsoring a family member if the sponsor, when immigrating to Canada, did not disclose the existence of the family member and therefore have them examined by immigration officials. This article …

The Intersection Of Exploitation And Coercion In Cases Of Canadian Labour Trafficking, Jesse Beatson, Jill Hanley, Alexandra Ricard-Guay

Journal of Law and Social Policy

Internationally, human trafficking intervention, research, and policy-making has leaned towards sex trafficking rather than labour trafficking. Aiming to understand the characteristics of labour trafficking within Canada, a country considered by many to have strong labour protections and clear pathways for labour migration, this article reports on a review of documented cases over the past fifteen years in Canada where labour exploitation intersected with coercion. Our analysis is centred on the notion that this is the crux of what constitutes labour trafficking—coercion being used to facilitate labour exploitation. In total, we collected thirty-six cases, involving an estimated 243 victims, and we …

Networking The Rule Of Law: The Canadian Bar Association’S Abandoned Intervention In Chevron V Yaiguaje, Rebecca Jaremko Bromwich

Journal of Law and Social Policy

This article looks at public debates surrounding how a network of Canadian lawyers disrupted an amicus curiae intervention in the recent Supreme Court of Canada case of Chevron Corp. v Yaiguaje. Analysis of this case study troubles assumptions about where and how law is made and suggests possibilities for successful activist engagement. Working together on a variety of points on a spectrum as advocates, counsel, interveners, and activists, lawyers leveraged their professional networks to influence and govern a multinational corporation by affecting what arguments were raised inside the court. I analyze the public debate about intervention in the Yaiguaje case …

The Special Joint Committee On The Constitution Of Canada, 1980-81, Peter W. Hogg, Annika Wang

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

The patriation of the Canadian Constitution and the entrenchment of the Canadian Charter of Rights and Freedoms in 1982 are, in some ways, the story of one man and one party. The constitutional package was drafted by Prime Minister Pierre Trudeau’s Liberals and approved by two Houses both controlled by the Liberals. The project was marked by Liberal control pitted against Conservative (and sometimes NDP) resistance, political gamesmanship, and partisan acrimony. But there is at least one chapter in this story where the Liberals lost their grip on the narrative, the parties set aside petty partisanship, and the Canadian public …

Constitutional Cases 2016: An Overview, Benjamin L. Berger, Sonia Lawrence, Spiros Vavougios

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

We are delighted to offer this introduction to the yearly volume of articles flowing from Osgoode Hall Law School’s annual Constitutional Cases Conference. The articles in this volume offer insightful and illuminating analysis of the constitutional jurisprudence from the Supreme Court of Canada’s 2016 term. In this introduction, we set the frame for these articles with an overview of the “constitutional year” at the Supreme Court, identifying some key patterns, themes, and issues that gave 2016 its distinctive mark. This overview is organized into three parts. As is the custom for these introductions, in Part I, we begin by offering …

Identity And Federalism: Understanding The Implications Of Daniels V. Canada, Thomas Isaac, Arend Hoekstra

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

“As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought” … “This case represents another chapter in the pursuit of reconciliation and redress in that relationship”. With these words Justice Abella set the tone of Daniels v. Canada (Indian Affairs and Northern Development) (“Daniels”); a decision that restates settled law, reframes core elements of Indigenous identity, and contributes to the recent resetting of the framework for how the federal and provincial governments approach reconciliation with Indigenous peoples.

On its face, Daniels is not so much …

Daniels V. Canada: Reflections On Constitutional Technique, S. Ronald Stevenson

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

The decision of the Supreme Court of Canada in Daniels v. Canada (Indian Affairs and Northern Development), has resolved a longstanding dispute about the scope of section 91(24) of the Constitution Act, 1867. We now know with certainty that both Métis and non-status Indians fall within the constitutional category of “Indians” that is contained in this provision. However, many questions remain about the interpretation and impact of section 91(24). This article will only attempt to address a small sub-set of these questions, focusing primarily on methods of constitutional interpretation. This argument begins by noting that the Supreme Court of Canada …

A Withering Instrumentality: The Negative Implications Of R. V. Safarzadeh-Markali And Other Recent Section 7 Jurisprudence, Andrew Menchynski, Jill R. Presser

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

The Supreme Court of Canada has faced a perennial problem, particularly since the advent of the Canadian Charter of Rights and Freedoms (“Charter”), in its efforts to protect the constitutional rights of individuals without unduly interfering in the domain of the legislative branch of government. A key question has been — to what extent should the courts use section 7 of the Charter to review or police Parliament’s decisions regarding laws that engage an individual’s liberty interests? Indeed, this is an issue brought to the fore in many of the Supreme Court of Canada’s recent decisions that have struck down …

R. V. Lloyd And The Unpredictable Stability Of Mandatory Minimum Litigation, Asad G. Kiyani

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

The adjudication of the constitutionality of mandatory minimum sentences by the Supreme Court of Canada presents a contradictory message. On the one hand, cases challenging the constitutionality of mandatory minimum sentences appear before the Court on a seemingly annual basis. On the other hand, the actual treatment of those cases is anything but routine, presenting divergent and at times contradictory messages within the narrow range of mandatory minimum sentences jurisprudence, sentencing law more generally, and the definition of Charter rights broadly speaking. The Court’s decision in R. v. Lloyd1 is the latest iteration in this line of cases, clarifying and …

R. V. Saeed: Penile Privacy And Penal Policy, Christine Mainville

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

What’s in a swab? When it comes to the law of search incident to arrest, the answer to that question turns out to be significant. In R. v. Saeed, the police took a swab of the suspect’s penis, purportedly incident to arrest, in order to link him to a sexual assault that had just taken place. Faced with the question of whether this was a permissible extension of that common law search power, the Court focussed primarily on the privacy interest in the information contained in the swab, rather than on the privacy interest engaged by the intimate nature of …

Making Trial Within A Reasonable Time A Right Once More, Steve Coughlan

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

Jordan got it right.

The use of presumptive ceilings to determine whether there has been a violation of a Charter right is a blunt instrument which eliminates most of the ability of judges to consider the individual circumstances of cases and to exercise discretion. It allows no role for what might seem to be an important consideration, the seriousness of the offence. Had this been the Court’s first attempt at structuring the right, it would seem unsophisticated and simplistic.

But of course Jordan is not the first attempt at outlining the contours of the right to a trial within a …

Reconciliation And The Constitution: A Transcript Of The Roundtable, Amar Bhatia, Beverley Jacobs, Jonathan Rudin, Douglas Sanderson, Mark Walters

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

As described in the opening piece in this Volume of the Supreme Court Law Review, unprecedented national media and political attention was given to the relationship between Indigenous people and the Canadian state in 2016. As part of our conference, we asked a group of people to come together and talk about the future of the Constitution as a means or an obstacle to reconciliation with Indigenous peoples and First Nations in Canada. Amnesty International’s most recent global report on the State of the World’s Human Rights praised Canada’s action regarding refugees, but then noted that “[c]oncerns persisted about the …