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“Silly Anecdotes”: From White Baselines To White Juries In R. V. Chouhan, Joshua Sealy-Harrington
“Silly Anecdotes”: From White Baselines To White Juries In R. V. Chouhan, Joshua Sealy-Harrington
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
This paper explains how the Supreme Court of Canada’s decision in R. v. Chouhan concerning jury impartiality is an illustrative example of “baselines”, or how implicit political positions held by judges govern their legal analysis. It begins with a summary of the background in Chouhan: the issue before the Court (the abolition of peremptory challenges) and how the judgment resolved that issue by constitutionally vindicating the impartiality of systemically white juries (an unfortunate continuation of the Court’s widely critiqued judgment in Kokopenace). Then, the paper analyzes Chouhan through the lens of baselines. First, the paper uses Chouhan to describe what …
The Significance Of R. V. Albashir In The Evolution Of Constitutional Remedies, Anne M. Turley, Zoe Oxaal
The Significance Of R. V. Albashir In The Evolution Of Constitutional Remedies, Anne M. Turley, Zoe Oxaal
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
This paper examines the impact of the Supreme Court of Canada’s decision in R. v. Albashir on constitutional remedies under section 52(1) of the Constitution Act, 1982 and section 24(1) of the Canadian Charter of Rights and Freedoms. Albashir marks a step in the evolution of constitutional remedies by adding to the list of factors that can justify a court declaring a law invalid on a prospective-only basis. It recognizes a new exception to the presumption of retroactivity that applies when a court declares a law to be invalid. Where a court suspends its declaration of invalidity, once the suspension …
Does The Supreme Court Of Canada Give A “Freak” About Disability Dignity?: The Inclusion Fallacy 25 Years After Eldridge, Ena Chadha, Emmett Rogers
Does The Supreme Court Of Canada Give A “Freak” About Disability Dignity?: The Inclusion Fallacy 25 Years After Eldridge, Ena Chadha, Emmett Rogers
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
For almost 20 years, the Supreme Court of Canada increasingly rejected the idea of disability as an inherent impairment and progressively endorsed the social model of disability, which recognizes the disabling condition is a consequence of structural and societal factors. However, recent Supreme Court jurisprudence has resurfaced the fallacy of disability being defined by individual defects and deviance. This paper surveys the Court’s disability discrimination jurisprudence from the seminal Eldridge v. British Columbia decision to the splintered Ward v. Quebec decision, examining how the Court appears to be retreating from the social model’s understanding of disability being a product of …
A Professional Comedian’S Fundamental Right To Publicly Bully A Child Because Of His Disability? Scrutinizing Ward V. Quebec Human Rights Commission Through A Disability Lens, David Lepofsky
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Ward, a well-known Quebec comedian, thought it would be funny to publicly ridicule and humiliate an adolescent with a disability known in Quebec for his singing. Quebec’s Human Rights Tribunal found that Ward violated his target’s statutory right to be free from disability discrimination in relation to the right to dignity, guaranteed by section 4 of the Quebec Charter of Human Rights and Freedoms. A five-justice majority of a sharply split Supreme Court of Canada overturned the award, leaving Ward free to repeat his bullying. Ward’s Supreme Court majority extended problematic legal protection to extreme, widely disseminated public taunting and …
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
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
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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 …
Walking The Line: The Politics Of Federalism And Environmental Change, Allan C. Hutchinson
Walking The Line: The Politics Of Federalism And Environmental Change, Allan C. Hutchinson
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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 …
Pogg Post References Re Greenhouse Gas Pollution Pricing Act Ggppa, Fenner L. Stewart
Pogg Post References Re Greenhouse Gas Pollution Pricing Act Ggppa, Fenner L. Stewart
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
In References re Greenhouse Gas Pollution Pricing Act, the Supreme Court of Canada addressed whether Parliament had the legislative competency to set and enforce minimum national standards for greenhouse gas emissions pricing. The Court held that it did, applying the national concern doctrine to establish that the Greenhouse Gas Pollution Pricing Act comes under Parliament’s “Peace, Order, and good Government” power. Below, I explore three aspects of the majority’s judgment that are likely to reappear in future division of powers cases: (1) its account of national concern doctrine’s judicial development; (2) its application of the validity test’s classification stage; and …
Judging Youth Time, Lisa M. Kelly
Judging Youth Time, Lisa M. Kelly
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Questions of time, culpability and rehabilitation permeate youth criminal law. This paper examines competing claims about time and justice in R. v. P. (C.), a recent decision of the Supreme Court of Canada upholding a leave requirement for youth appeals in circumstances where adults enjoy an appeal as of right. In light of the relatively low stakes of the case in terms of actual appellate practice, I question why the majority worked so hard, often at the expense of logic, to deny a formal equality claim that would have changed little in reality. I argue that an enduring, if unstated, …
“’Tis A Rock—A Crag—A Cape? A Cape? Say Rather A Peninsula!” The Supreme Court Of Canada’S Revisitation Of The National Concern Doctrine, Jean Leclair
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
After providing an overview of the jurisprudential context prior to the References re Greenhouse Gas Pollution Pricing Act, this paper examines how the majority in that judgment refashioned the national concern doctrine to allow both levels of government to legislate over the very same matter of carbon pricing.
Where Can An Aboriginal Rights Holder Exercise Their Rights? Reflections From R. V. Desautel, Senwung Luk
Where Can An Aboriginal Rights Holder Exercise Their Rights? Reflections From R. V. Desautel, Senwung Luk
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
In the R. v. Desautel decision, the Supreme Court of Canada determined that an Indigenous person resident in the United States can have Aboriginal rights under section 35 of the Constitution Act. It provides an opportunity to reflect on the geographical dimensions of constitutionally protected Aboriginal rights. Contrary to popular perception, and to some decided cases, the Van der Peet framework does not come with geographical limits. This can be seen in a survey of the case law. Rather, the absence of such limits, and the absence of conflicts between First Nations about the practice of Aboriginal rights in the …
Open Courts, Privacy And Equality In A Digital Era: The Supreme Court Of Canada’S 2021 Open Court Jurisprudence, Amy Salyzyn, Samuel Singer
Open Courts, Privacy And Equality In A Digital Era: The Supreme Court Of Canada’S 2021 Open Court Jurisprudence, Amy Salyzyn, Samuel Singer
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
This paper analyzes the Supreme Court of Canada’s 2021 open court jurisprudence: Sherman Estate v. Donovan, Canadian Broadcasting Corp. v. Manitoba and MediaQMI inc. v. Kamel. At the heart of our analysis is the exploration of several more latent dynamics found in the cases which, in our view, pose foundational and continuing challenges for open court jurisprudence. Underlying MediaQMI are concerns about the appropriate level of party control over court records. CBC v. Manitoba invites questions about who constitutes the “media” with the increasing democratization and digitalization of information exchange. In Sherman, the concept of privacy — rooted in the …
Indigenous Peoples’ Transboundary Claims, Access To Justice, And The Canadian Constitutional Structure: The Uashaunnuat Case, Sophie Thériault
Indigenous Peoples’ Transboundary Claims, Access To Justice, And The Canadian Constitutional Structure: The Uashaunnuat Case, Sophie Thériault
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
This article analyses the tightly split decision of the Supreme Court of Canada in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), in which the Court was tasked with determining whether the Superior Court of Quebec had jurisdiction to hear a claim of Aboriginal title and rights extending to lands situated in the province of Newfoundland and Labrador. It argues that behind the Supreme Court’s divergences regarding the interpretation and application of the Civil Code of Quebec’s rules pertaining to the jurisdiction of Quebec authorities, reside competing conceptions of the place of Indigenous peoples’ rights …
Reference Re Genetic Non-Discrimination Act: How To Make Space For Some Certainty, Hoi L. Kong
Reference Re Genetic Non-Discrimination Act: How To Make Space For Some Certainty, Hoi L. Kong
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
In the Reference re Genetic Non-Discrimination Act (Reference) the Supreme Court of Canada divided three ways, reproducing the divisions from the Reference re Assisted Human Reproduction Act (AHRA), decided a decade earlier. AHRA did not provide a majority statement of the rule for determining what constitutes a valid exercise of the section 91(27) criminal law power. Neither did the Reference. As a consequence, uncertainty in this area of the law persists. This article suggests arguments that, if adopted, would resolve this uncertainty. Part I summarizes the Reference, including the three sets of reasons written by Karakatsanis J., Moldaver J. and …
Equality Before The Charter: Reflections On Fraser V. Canada (Attorney General), Carissima Mathen
Equality Before The Charter: Reflections On Fraser V. Canada (Attorney General), Carissima Mathen
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Since Andrews v. Law Society of BC, the Supreme Court’s section 15 jurisprudence has been marked by inconsistency, judicial disagreement, and scholarly criticism. In Fraser v. Canada, female RCMP offıcers challenged a policy that prevented access to full-time pension benefits. Refining the concept of adverse impact discrimination and drawing on evidence of women’s economic disadvantage, the majority found that the policy constituted sex discrimination. While Justice Abella’s majority judgment has been hailed as a major victory, Justices Brown and Rowe’s dissent sharply criticized the concept of ‘substantive equality’, confirming longstanding divisions. This paper uses Fraser to reflect on the narrative …
Triage And Dissensus At The Supreme Court Of Canada: A Review Of The Court’S 2020 Constitutional Decisions, Bruce Ryder
Triage And Dissensus At The Supreme Court Of Canada: A Review Of The Court’S 2020 Constitutional Decisions, Bruce Ryder
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
The onset of the COVID-19 pandemic forced the Supreme Court of Canada to make significant adaptations in 2020. The Court heard fewer appeals, decided fewer cases and adjusted to the necessity of online hearings. Despite the challenges posed by the pandemic, the Court issued a handful of landmark rulings in 2020. These rulings engaged critically with the Court’s past jurisprudence, considered a wide range of scholarship, and broke new ground by boldly clarifying and developing the law. The Court’s 2020 constitutional decisions were also characterized by a dramatic approach to triage and a remarkable degree of dissensus. The Court prioritized …
Touch Of Evil: Disagreements At The Heart Of The Criminal Law Power, Eric M. Adams
Touch Of Evil: Disagreements At The Heart Of The Criminal Law Power, Eric M. Adams
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Evil has been a diffıcult presence to shake in the judicial treatment of Parliament’s criminal law power, s. 91(27). From its early treatment by the Judicial Committee of the Privy Council to the Supreme Court of Canada’s latest disagreements in Reference re Genetic Non-Discrimination Act, the necessity of suppressing evil has woven in and out of the jurisprudence of the criminal law power. Alluring for its potential to provide some integrity and definitional limits to a broad head of jurisdictional power, a judicial standard premised on evil ultimately distracts more than it assists in adjudicating the division of powers by …
“The Power Of Advocacy”, Sheilah Martin
“The Power Of Advocacy”, Sheilah Martin
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
This is a lightly edited transcript of a keynote address delivered at the 24th Annual Osgoode Constitutional Cases Conference on April 9, 2021.
Rigour Required: Recent Direction From The Supreme Court Of Canada On Binding And Non-Binding Sources Of International Law In Charter Interpretation, Ravi Amarnath, Courtney Harris
Rigour Required: Recent Direction From The Supreme Court Of Canada On Binding And Non-Binding Sources Of International Law In Charter Interpretation, Ravi Amarnath, Courtney Harris
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
It is not uncommon for parties to plead principles of international law to inform a court’s analysis of the Canadian Charter of Rights and Freedoms (the “Charter”). However, commentators have long expressed concern about the Supreme Court of Canada’s lack of clarity on how it uses international human rights law and for what purpose in Charter interpretation. This paper addresses how a divided Supreme Court of Canada in Quebec (Attorney General) v. 9147-0732 Québec inc. (“9147-0732 Québec inc.”) attempted to clarify when it is appropriate for a court to use international law to interpret the scope of a Charter protection …
A Plumber With Words: Seeking Constitutional Responsibility And An End To The Little Sisters Problem, Alison M. Latimer, Benjamin L. Berger
A Plumber With Words: Seeking Constitutional Responsibility And An End To The Little Sisters Problem, Alison M. Latimer, Benjamin L. Berger
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
In this article, written in tribute to and memory of Joseph A. Arvay, the authors explore and address the “Little Sisters problem”: the tracing of endemic Charter wrongs to the “maladministration” of a law, rather than holding the law itself — and, with it, the legislator — responsible. This doctrinal move, which crystallized in the first Little Sisters case, is a structural impediment to Charter justice not only because it raises serious access to justice concerns, but because it badly disrupts and distorts lines of constitutional accountability. Having first defined the Little Sisters problem and its effects, the paper demonstrates …
Joe’S Justice: Substantive, Procedural And Remedial Equality, Kent Roach
Joe’S Justice: Substantive, Procedural And Remedial Equality, Kent Roach
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Drawing on his factums in many constitutional cases, this article suggests that Joe was an early and consistent champion for substantive, procedural and remedial equality. The first part examines Joe’s commitment to substantive equality including his arguments for British Columbia in Andrews v. Law Society of British Columbia, his forward-looking approach to Indigenous rights and his commitment to authentic public law litigation that respected the disadvantaged. The second part examines Joe’s recognition that substantive equality cannot be achieved without procedural equality that gives disadvantaged litigants the equal benefit of procedural rules that too often favour governments. It examines Joe’s arguments …
Introduction – 2019 Constitutional Cases At The Supreme Court: Up Close And In Person, Sonia Lawrence
Introduction – 2019 Constitutional Cases At The Supreme Court: Up Close And In Person, Sonia Lawrence
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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 …
Climate Change Class Actions In Canada, Jasminka Kalajdzic
Climate Change Class Actions In Canada, Jasminka Kalajdzic
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
In January 2020, a divided 9th Circuit Court of Appeals dismissed the long running case, Juliana v. United States. The plaintiffs, 21 young citizens and an environmental organization, had sued the U.S. president and various federal agencies, claiming that their continued authorization and subsidization of fossil fuels contributed to catastrophic climate change that was incompatible with sustained human life. They argued that these harms constituted a violation of their constitutional rights to due process and equal protection of the law, and sought declaratory relief as well as an injunction requiring the government to phase out fossil fuel emissions and draw …
Saving The Planet Doesn’T Mean You Can’T Save The Federation: Greenhouse Gases Are Not A Matter Of National Concern, Josh Hunter
Saving The Planet Doesn’T Mean You Can’T Save The Federation: Greenhouse Gases Are Not A Matter Of National Concern, Josh Hunter
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
In September 2020, the Supreme Court of Canada heard appeals from three provincial references concerning the constitutionality of the federal Greenhouse Gas Pollution Pricing Act. The Act imposes a “carbon tax” on fuels and industrial activities in “listed provinces” the federal Governor in Council has decided have not placed sufficiently stringent prices on greenhouse gas emissions. Saskatchewan, Ontario and Alberta brought references to their Courts of Appeal seeking an opinion on the validity of the Act. The majorities in Saskatchewan and Ontario affirmed the validity of the Act under the national concern branch of the federal peace, order and good …
Ending The Erasure?: Writing Race Into The Story Of Psychological Detentions – Examining R. V. Le, Amar Khoday
Ending The Erasure?: Writing Race Into The Story Of Psychological Detentions – Examining R. V. Le, Amar Khoday
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
When does a police detention begin? In various instances, the answer to this question may be entirely obscure but nevertheless consequential to one’s constitutional rights and the admission of evidence. Even in the absence of circumstances where police officers employ physical restraint, the Supreme Court of Canada has recognized that law enforcement officials may nevertheless “psychologically detain” an individual. Specifically, a reasonable person may believe that they are simply unable to walk away from a police-initiated encounter and are compelled to respond to questioning. Due possibly to a sense of coercion, this perceived inability may arise even where the detention …
Policing Arbitrariness: Fleming V. Ontario And The Ancillary Powers Doctrine, Terry Skolnik, Vanessa Macdonnell
Policing Arbitrariness: Fleming V. Ontario And The Ancillary Powers Doctrine, Terry Skolnik, Vanessa Macdonnell
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
In 2019, the Supreme Court of Canada released its decision in Fleming v. Ontario. The case is significant because it is one of the very few police powers cases in the past three decades in which the Supreme Court has declined to recognize a new power. Since the pivotal case of Dedman, police powers jurisprudence has been characterized by the recognition of increasingly more intrusive common law powers to detain, investigate and search. This trend seemed to reach its zenith in Saeed, in which a majority of the Court recognized a common law power to conduct a warrantless penile swab …
Of Dominant Tides: Desgagnés Transport Inc. V. Wärtsilä Canada Inc. And The Growing Acceptance Of Provincial Jurisdiction In Maritime Matters, Sean Hanley, Sean Pierce
Of Dominant Tides: Desgagnés Transport Inc. V. Wärtsilä Canada Inc. And The Growing Acceptance Of Provincial Jurisdiction In Maritime Matters, Sean Hanley, Sean Pierce
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
In Desgagnés Transport Inc. v. Wärtsilä Canada Inc., the Supreme Court of Canada addressed the relationship between non-statutory law and federalism in the context of Canadian maritime law. The dispute turned on whether the Civil Code of Québec or non-statutory federal maritime law governed a latent defect in engine parts that a Dutch company and its Canadian division (“Wärtsilä”) had sold to a Canadian shipping company located in Quebec (“TDI”). If federal maritime law governed, Wärtsilä’s liability would be limited to 250,000. If Quebec civil law governed, TDI would recover slightly more than $5.6 million. All nine justices agreed that …
Seven Out Of Nine Legal Experts Agree: Expertise No Longer Matters (In The Same Way) After Vavilov!, Audrey Macklin
Seven Out Of Nine Legal Experts Agree: Expertise No Longer Matters (In The Same Way) After Vavilov!, Audrey Macklin
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
When an important case is appealed to the Supreme Court of Canada, interested observers focus their attention on the substantive principles that they hope the Court will articulate. Typically, some uncertainty in the law exists — after all, the case would not be worthy of the Supreme Court’s attention otherwise. But the confusion reigning in standard of review jurisprudence had reached a level where some people’s desire for certainty, especially in the mechanics of deference, broke free from any substantive substrate. Thumb’s second postulate, “An easily-understood, workable falsehood is more useful than a complex, incomprehensible truth”, held even more attraction …
Sidestepping The Charter, Again: Muting The Right To Habeas Corpus In Canada (Public Safety And Emergency Preparedness) V. Chhina, Jared Will
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
In 2019, the Supreme Court of Canada released its judgment in Canada (Public Safety and Emergency Preparedness) v. Chhina. The case raised a rather simple question: Can a non-citizen detained by the Canadian state under the Immigration and Refugee Protection Act challenge the legality of his or her detention before a superior court by way of habeas corpus? While some thought that the answer had to be “yes”, and the government unsurprisingly argued that it is always “no”, the Court’s somewhat less than emphatic response was a resounding “perhaps occasionally”.
The Right To Vote And Freedom Of Expression In Political Process Cases Under The Charter, Yasmin Dawood
The Right To Vote And Freedom Of Expression In Political Process Cases Under The Charter, Yasmin Dawood
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
The Supreme Court of Canada’s political process cases cover a wide array of issues, including the right to vote, electoral redistricting, campaign finance and the regulation of political parties. This article focuses on the Court’s most recent section 3 decision, Frank v. Canada (Attorney General), as well as an upcoming section 2(b) case, Toronto (City) v. Ontario (Attorney General). 3 In Frank, the Court held that provisions banning long-term non-resident citizens from voting in a federal election infringed section and were not justified under section 1 of the Canadian Charter of Rights and Freedoms. While the Frank decision is notable …
The Frank Dissent’S Novel Theory Of The Charter: The Rhetoric And The Reality, Jacob Weinrib
The Frank Dissent’S Novel Theory Of The Charter: The Rhetoric And The Reality, Jacob Weinrib
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Since the early days of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada has applied a two-stage framework to determine whether legislation complies with the Charter. The first stage considers whether the legislation infringes a right or freedom. The second determines whether the infringement is demonstrably justified. In Frank v. Canada (Attorney General), the dissenting opinion of Côté and Brown JJ. rejects this framework and formulates an alternative. Their central claim is that the Charter does not justify the infringement of the rights that it elaborates. Accordingly, instead of focusing on whether an infringement is justified, …