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Full-Text Articles in Law
Quebec V A And Taypotat: Unpacking The Supreme Court’S Latest Decisions On Section 15 Of The Charter, Alicja Puchta
Quebec V A And Taypotat: Unpacking The Supreme Court’S Latest Decisions On Section 15 Of The Charter, Alicja Puchta
Osgoode Hall Law Journal
The Supreme Court of Canada’s articulation for the test for discrimination under section 15 of the Charter has undergone numerous permutations over the past twenty-five years. The Supreme Court introduced its latest round of changes in its 2013 decision in Québec (Attorney General) v A and its 2015 decision in Kahkewistahaw First Nation v Taypotat. Together, these two decisions clarified that the appropriate approach to section 15 was not one focused strictly on stereotype and prejudice, but rather on all contextual factors that may inform whether an impugned law violates the norm of substantive equality. This paper critically analyzes the …
Assessing The Impact Of Unilingualism At The Supreme Court Of Canada: Panel Composition, Assertiveness, Caseload, And Deference, Jean-Christophe Bédard-Rubin, Tiago Rubin
Assessing The Impact Of Unilingualism At The Supreme Court Of Canada: Panel Composition, Assertiveness, Caseload, And Deference, Jean-Christophe Bédard-Rubin, Tiago Rubin
Osgoode Hall Law Journal
This paper is a first empirical foray in the debate concerning mandatory bilingualism for Supreme Court judges in Canada. The paper summarizes the main arguments, discusses the framing of bilingualism as a “legal” or an “identity” requirement, and uses empirical data to assess whether unilingualism has had an impact on four dimensions of the decision-making process at the Supreme Court of Canada: panel composition, assertiveness, individual caseloads and deference towards lower courts by unilingual and bilingual judges. Our results suggest that there is a correlation between the fluency in French and the first three elements but that there is no …
Unreasonable Disagreement?: Judicial–Executive Exchanges About Charter Reasonableness In The Harper Era, Matthew A. Hennigar
Unreasonable Disagreement?: Judicial–Executive Exchanges About Charter Reasonableness In The Harper Era, Matthew A. Hennigar
Osgoode Hall Law Journal
Assessments of “reasonableness” are central to adjudicating claims under several Charter rights and the section 1 “reasonable limits” clause. By comparing Supreme Court of Canada rulings to facta submitted by the Attorney General of Canada to the Court, this article examines the federal government’s success under Prime Minister Harper at persuading the Supreme Court of Canada that its Charter infringements in the area of criminal justice policy are reasonable, and when they fail to do so, on what grounds. The evidence reveals that the Conservative government adopted a consistently defensive posture in court, never conceding that a law was unreasonable, …
Conservatives, The Supreme Court Of Canada, And The Constitution: Judicial-Government Relations, 2006–2015, Christopher Manfredi
Conservatives, The Supreme Court Of Canada, And The Constitution: Judicial-Government Relations, 2006–2015, Christopher Manfredi
Osgoode Hall Law Journal
Three high-profile government losses in the Supreme Court of Canada in late 2013 and early 2014, combined with the government’s response to those losses, generated a narrative of an especially fractious relationship between Stephen Harper’s Conservative government and the Court. This article analyzes this narrative more rigorously by going beyond a mere tallying of government wins and losses in the Court. Specifically, it examines Charter-based invalidations of federal legislation since 2006, three critical reference opinions rendered at the government’s own request, and two key judgments delivered in the spring of 2015 concerning Aboriginal rights and the elimination of the long-gun …
Dead Hands, Living Trees, Historic Compromises: The Senate Reform And Supreme Court Act References Bring The Originalism Debate To Canada, J. Gareth Morley
Dead Hands, Living Trees, Historic Compromises: The Senate Reform And Supreme Court Act References Bring The Originalism Debate To Canada, J. Gareth Morley
Osgoode Hall Law Journal
Recent American debates about the relationship between the historic political compromises underlying constitutional provisions and their contemporary judicial application have been largely ignored in Canada. The Supreme Court of Canada has only twice referred to originalism—and never positively. But in two 2014 decisions about how central institutions of government—the Senate and the Supreme Court of Canada itself—might be changed, the Court relied on the underlying historic political compromises to interpret the Constitution, rejecting arguments from the text or democratic principle. In this article, I consider how Canadian courts have looked to history in the past and in the 2014 decisions, …
Compact Is Back: The Supreme Court Of Canada’S Revival Of The Compact Theory Of Confederation, Sébastien Grammond
Compact Is Back: The Supreme Court Of Canada’S Revival Of The Compact Theory Of Confederation, Sébastien Grammond
Osgoode Hall Law Journal
The compact theory of Canadian Confederation is the idea that the Constitution is the product of a political agreement (or “compact”) among the country’s constitutive parts. Although the theory has been widely criticized, this article shows how the theory has recently been used by the Supreme Court of Canada to explain the origins of certain parts of the Constitution and to guide its interpretation, in particular in cases involving constitutional amendment and indigenous rights. It then discusses how the Court dealt with instances where one party’s consent to a foundational compact was vitiated or altogether lacking, and whether the Court’s …
“By The Court”: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick
“By The Court”: The Untold Story Of A Canadian Judicial Innovation, Peter Mccormick
Osgoode Hall Law Journal
What do the BCE case of 2008, the Securities Reference case of 2010, the Senate Reform Reference case of 2014, and the Carter (assisted suicide) case of 2015 have in common? All are unanimous decisions of the Supreme Court of Canada in which the reasons for judgment—the explanation as to why the outcome is the legally and constitutionally appropriate one—are not attributed to any specific named judge or judges on the Supreme Court, but rather to a mysterious entity called THE COURT. Very few Supreme Court decisions take this form, and there was a time not that long ago when …
Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick
Who Writes? Gender And Judgment Assignment On The Supreme Court Of Canada, Peter Mccormick
Osgoode Hall Law Journal
This article poses the question: Now that women are receiving an increasing share of the seats on the Supreme Court of Canada (the Court), can we conclude with confidence that they have been admitted to full participation, with a mix of judgments—including the more significant decisions—that is fully comparable to their male colleagues? The author looks at the assignment of reasons for judgment on the Court over the last three chief justiceships, with specific reference to the relative rate of assignments to male and female judges. He finds that the male/female gap is more robust than ever, although he also …
Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie
Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie
Osgoode Hall Law Journal
Competing theories regarding the development of a “rights revolution” in Canada have appeared in the judicial and constitutional literature in recent years. On the one hand, scholars argue that the profound effects often attributed to the Charter of Rights and Freedoms are substantially overstated, and conventional analyses have overlooked the more important role of changes in what is called the “support structure” for rights. Others have advanced a competing theory that the Charter created an expansion of civil liberties. We take advantage of an extensive dataset on the decisions of the Supreme Court of Canada to provide a more systematic …
The Supreme Court Of Canada And Constitutional (Equality) Baselines, Rosalind Dixon
The Supreme Court Of Canada And Constitutional (Equality) Baselines, Rosalind Dixon
Osgoode Hall Law Journal
In its approach to defining “analogous grounds” for the purposes of subsection 15(1) of the Charter of Rights and Freedoms, the Supreme Court of Canada has adopted an unusual mix of broad and generous interpretation, and high formalism. This article argues that one potential reason for this is the degree of heterogeneity among the nine distinct enumerated grounds in section 15. Heterogeneity of this kind can produce quite different interpretive consequences, depending on whether a court adopts a direct, “multi-pronged,” or a more synthetic, “common denominator,” approach to the question of analogical development. The Court, over time, has implicitly shifted …
The Charter's Influence Around The World, Mark Tushnet
The Charter's Influence Around The World, Mark Tushnet
Osgoode Hall Law Journal
Over the past several decades, the influence of the United States Constitution and Supreme Court around the world has waned while that of the Canadian Charter and Supreme Court has increased. This article examines several reasons for these changes, including: the relative ages of the constitutions; the US Supreme Court’s recent conservatism; the Canadian Supreme Court’s role in developing the doctrine of proportionality; the US Supreme Court’s interest in originalism; differing structures of constitutional review and judicial supremacy; and the two Courts’ relative openness to transnational influences.
Rights Adjudication In A Plurinational State: The Supreme Court Of Canada, Freedom Of Religion, And The Politics Of Reasonable Accommodation, Sujit Choudhry
Rights Adjudication In A Plurinational State: The Supreme Court Of Canada, Freedom Of Religion, And The Politics Of Reasonable Accommodation, Sujit Choudhry
Osgoode Hall Law Journal
A disproportionate number of the Supreme Court of Canada’s recent cases on freedom of religion come out of Quebec and involve claims for reasonable accommodation. These decisions represent a point of national cleavage in two respects. First, in each case the Quebec Court of Appeal rejected the section 2(a) claims, and the Supreme Court of Canada overturned its decision. Second, the Supreme Court has often divided on national lines with one or more francophone judges from Quebec writing a concurrence or a sharp dissent. Moreover, francophone judges from outside Quebec have also broken ranks with their colleagues. The cleavages on …
The Unfortunate Triumph Of Form Over Substance In Canadian Administrative Law, Paul Daly
The Unfortunate Triumph Of Form Over Substance In Canadian Administrative Law, Paul Daly
Osgoode Hall Law Journal
The standard of review analysis for judicial review of administrative action developed by the Supreme Court of Canada before Dunsmuir v New Brunswick had two important features. First, it provided a bulwark against interventionist judges, thereby protecting the autonomy of administrative decision makers and promoting deference. Second, it was substantive, rather than formal, and moved the focus of judicial review away from abstract concepts and towards the eccentricities of statutory schemes. However, in its more recent forays into the general principles of judicial review, the Court has threatened to reverse its deferential and substantive course by following a formalistic, categorical …
The Supreme Court Of Canada, Charter Dialogue, And Deference, Rosalind Dixon
The Supreme Court Of Canada, Charter Dialogue, And Deference, Rosalind Dixon
Osgoode Hall Law Journal
For those concerned about the democratic legitimacy of Charter review by Canadian courts, the idea of dialogue offers a promising middle path between the extremes of judicial and legislative supremacy. Current dialogue theory, however, largely fails to live up to this promise of compromise. Instead of distinguishing democratic worries associated with US style, strong-form judicial review, it largely endorses the legitimacy of such review. For dialogue to live up to its original promise, a new theory that more clearly distinguishes Canada from the United States is required. This article offers a new theory of dialogue in which the willingness of …
Appealing Outcomes: A Study For The Overturn Rate Of Canada's Appellate Courts, Michael H. Lubetsky, Joshua A. Krane
Appealing Outcomes: A Study For The Overturn Rate Of Canada's Appellate Courts, Michael H. Lubetsky, Joshua A. Krane
Osgoode Hall Law Journal
This commentary discusses the rate at which Canada's appellate courts are overturned by the Supreme Court of Canada. By deconstructing the overturn rate, the authors identify and compare various factors that affect the rate at which appeals are pursued, considered, and allowed. The data reveal that decisions from the British Columbia, Quebec, and Newfoundland & Labrador courts of appeal are overturned more often than those from their counterparts. Conversely, the Ontario and Saskatchewan courts of appeal exhibit overturn rates below the national average. The analysis suggests that the underlying drivers giving rise to the unusually high or low overturn rates, …
American Citations And The Mclachlin Court: An Empirical Study, Peter Mccormick
American Citations And The Mclachlin Court: An Empirical Study, Peter Mccormick
Osgoode Hall Law Journal
This article examines the use of American jurisprudence by the judges of the McLachlin Court, using an earlier study of such citations as a reference point. In addition to tracking overall use of American citations over time, it looks at these trends: which Canadian judges use American cases and for which types of cases; and which American cases, courts, and judges are being cited. Brief descriptions of the Supreme Court cases with the largest use of American citations precede a categorization of the results. The article confirms previous academic findings that the use of American citations have been modest, with …
A New Era In The Selection Of Supreme Court Judges?, Jacob Ziegel
A New Era In The Selection Of Supreme Court Judges?, Jacob Ziegel
Osgoode Hall Law Journal
No abstract provided.
Parliamentary Scrutiny Of Supreme Court Nominees: A View From The United Kingdom, Kate Malleson
Parliamentary Scrutiny Of Supreme Court Nominees: A View From The United Kingdom, Kate Malleson
Osgoode Hall Law Journal
No abstract provided.
Research Note: All But One: Solo Dissents On The Modern Supreme Court Of Canada, Christine M. Joseph
Research Note: All But One: Solo Dissents On The Modern Supreme Court Of Canada, Christine M. Joseph
Osgoode Hall Law Journal
It can be argued that the exercise of solo dissent on the Supreme Court of Canada is judicial disagreement at its apex-a single judge sitting on the highest court in the nation breaking away from his or her colleagues who have purportedly "gotten it wrong." By examining the practice of solo dissent in the Supreme Court of Canada over the last three decades, this research note provides insight into this unique form of judicial disagreement. Through construction of a typology of solo dissents, and by providing answers to important questions, such as how often judges render solo dissents and whether …
Appointment Of Justice Marshall Rothstein To The Supreme Court Of Canada, Peter W. Hogg
Appointment Of Justice Marshall Rothstein To The Supreme Court Of Canada, Peter W. Hogg
Osgoode Hall Law Journal
Peter Hogg, a constitutional law scholar, was retained by the Commissioner for Federal Judicial Affairs to provide advice to the Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada as to its procedures. His account of the public hearing provides an insider's viewpoint of the historic process undertaken for the appointment of Justice Rothstein. His opening remarks to the committee, appended to this commentary, set out the parameters of questioning for the hearing, but raise additional questions with regard to the appropriate limits of judicial speech.
The Serendipitous Solution To The Problem Of Supreme Court Appointments, Peter Mccormick
The Serendipitous Solution To The Problem Of Supreme Court Appointments, Peter Mccormick
Osgoode Hall Law Journal
No abstract provided.
The Constitutionalization Of Quebec Libel Law, 1848-2004, Joseph Kary
The Constitutionalization Of Quebec Libel Law, 1848-2004, Joseph Kary
Osgoode Hall Law Journal
In 1848, a Quebec judge changed the law of defamation to accord with the newly-applicable constitutional right to freedom of speech. His decision and those that followed seem strange now that the Supreme Court of Canada has held that Charter rights do not apply to private law. These decisions show that the constitutionalization of libel law was not an American innovation, but rather one that emerged in Canada over a century earlier. This article analyzes the Quebec cases in detail, and suggests that they were grounded in liberal ideas about the British Constitution that were prevalent in Lower Canada at …
Blocs, Swarms, And Outliers: Conceptualizing Disagreement On The Modern Supreme Court Of Canada, Peter Mccormick
Blocs, Swarms, And Outliers: Conceptualizing Disagreement On The Modern Supreme Court Of Canada, Peter Mccormick
Osgoode Hall Law Journal
Almost half of the Supreme Court of Canada's decisions are not unanimous, but not all disagreement is of a kind. It makes a difference whether the panel's unanimity is broken by a single dissident, by several judges signing a single set of reasons, or by several judges each writing separately. This article examines the notion of disagreement, suggests a conceptual framework in which the various disagreement formats can be located, applies that framework to the Court's performance over the past thirty years, and concludes with some speculation as to why the Supreme Court of Canada and the United States Supreme …
L'Intégration Des Valeurs Et Des Intérêts Autochtones Dans Le Discours Judiciaire Et Normatif Canadien, Andrée Lajoie, Eric Gélineau, Isabelle Duplessis, Guy Rocher
L'Intégration Des Valeurs Et Des Intérêts Autochtones Dans Le Discours Judiciaire Et Normatif Canadien, Andrée Lajoie, Eric Gélineau, Isabelle Duplessis, Guy Rocher
Osgoode Hall Law Journal
This article aims to define the degree to which values presented by groups representing Aboriginal interests in the Supreme Court of Canada have been integrated into the discourse of the Court and the decisions of political actors in Canada. The authors' analysis confirms the hypothesis that the Court, in contrast to its favourable treatment of private claims made by social minorities, is less receptive to the claims made by Aboriginals, a political minority whose claims are centered on political power and territory, issues that have been relegated to political negotiations. The significant difference between judicial and political decisionmakers concerning Aboriginal …
The Constitutional Legacy Of Chief Justice Brian Dickson, Robert J. Sharpe
The Constitutional Legacy Of Chief Justice Brian Dickson, Robert J. Sharpe
Osgoode Hall Law Journal
Chief Justice Brian Dickson played a central role in the elaboration of the fundamental values of the Canadian Constitution. He took a balanced approach to federalism, favouring neither federal nor provincial claims and inviting cooperation through overlapping jurisdiction. Dickson transformed the rule of law from a background value to an operative constitutional principle. His judgments on the rights of minorities reflect a remarkable empathy for the plight of the disadvantaged. Democracy informed all aspects of his constitutional thinking. Dickson rejected the contention that judicial review is anti-democratic, and his constitutional legacy reflects a sustained effort to harmonize all four fundament …
The Charter Of Rights And Freedoms And The Rebalancing Of Liberal Constitutionalism In Canada, 1982-1997, James B. Kelly
The Charter Of Rights And Freedoms And The Rebalancing Of Liberal Constitutionalism In Canada, 1982-1997, James B. Kelly
Osgoode Hall Law Journal
This article presents a statistical analysis of the first 352 Charter of Rights and Freedoms decisions by the Supreme Court of Canada between 1982 and 1997. The author argues that the emerging approach to Charter review by the Supreme Court of Canada has led to a rebalancing of liberal constitutionalism and to a reconciliation between Charter rights and federalism. This stands in stark contrast to the highly activist approach to Charter review detected in studies by Morton, Russell, and Withey and, to a lesser extent, by Morton, Russell, and Riddell. Several factors illustrate the rebalancing of liberal constitutionalism in Canada. …
L'Indépendance Judiciaire Et La Cour Suprême: Reconstruction Historique Douteuse Et Théorie Constitutionnelle De Complaisance, Jean Leclair, Yves-Marie Morissette
L'Indépendance Judiciaire Et La Cour Suprême: Reconstruction Historique Douteuse Et Théorie Constitutionnelle De Complaisance, Jean Leclair, Yves-Marie Morissette
Osgoode Hall Law Journal
The recent decision of the Supreme Court of Canada in the Reference re: Remuneration of Judges in the Provincial Court of Prince Edward Island has given judicial independence a surprising interpretation. A majority of the Court stated that this principle requires legislative bodies to establish independent procedures for setting judicial salaries. The Court maintained that the basis of judicial independence is to be found in the preamble of the Constitution Act, 1867, rather than the express provisions of the constitutional text. The authors argue in Part I of this article that the Court transformed fundamentally and without reason traditional conceptions …
Birds Of A Feather: Alliances And Influences On The Lamer Court 1990-1997, Peter Mccormick
Birds Of A Feather: Alliances And Influences On The Lamer Court 1990-1997, Peter Mccormick
Osgoode Hall Law Journal
The Supreme Court does not always speak with a single voice; for many decisions, there are judges who register disagreement with the majority's legal reasoning or even with the outcome. Are there identifiable fault lines dividing a persisting "majority" and "minority?" Are there one or more "swing vote" judges who allow the minority some share of the decisions of the Court? And, given that the coalitions are shifting rather than rigid, which pairings of judges most frequently (or most seldom) hold together through these shifts? This paper examines the divided panel decisions of the first seven years of the Lamer …
R. V. Oakes 1986-1997: Back To The Drawing Board, Leon E. Trakman, William Cole-Hamilton, Sean Gatien
R. V. Oakes 1986-1997: Back To The Drawing Board, Leon E. Trakman, William Cole-Hamilton, Sean Gatien
Osgoode Hall Law Journal
The Supreme Court of Canada, in R. v. Oakes, identified two standards of justification in applying section 1. The first standard was normative. The second was methodological, called the Oakes test. The Court, until recently, applied the Oakes test mechanically and avoided the normative standard. More recently, in Egan v. Canada and RJR-MacDonald Inc. v. Canada (A.G.), it resorted to a normative analysis that is indeterminate and unpredictable. This article challenges both the mechanical application of the Oakes test and the Court's new normative approach. It proposes, and illustrates, a preferable alternative that is both determinate and predictable. It is …
The Supreme Court In Flames: Fire Insurance Decisions After Kosmopoulos, Reuben A. Hasson
The Supreme Court In Flames: Fire Insurance Decisions After Kosmopoulos, Reuben A. Hasson
Osgoode Hall Law Journal
This article examines three recent Supreme Court of Canada decisions on fire insurance after the historic Kosmopoulos decision. In all three cases, the author finds a distressing lack of concern with relevant statutory provisions, policy arguments, and precedent. Responsibility for this deplorable state of affairs must be shared between the Court and counsel. Insurance law is a very complex body of law, deserving as much care as that of, say, the law of the Charter.