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Full-Text Articles in Law
A Narrowing Field Of View: An Investigation Into The Relationship Between The Principles Of Treaty Interpretation And The Conceptual Framework Of Canadian Federalism, Joshua Ben David Nichols
A Narrowing Field Of View: An Investigation Into The Relationship Between The Principles Of Treaty Interpretation And The Conceptual Framework Of Canadian Federalism, Joshua Ben David Nichols
Osgoode Hall Law Journal
In its recent decisions in Tsilhqot’in Nation and Grassy Narrows, the Supreme Court of Canada has significantly altered the position of Indigenous peoples within the structure of Canadian federalism. This article sets out to investigate the basis for the Court’s jurisdiction to change this structure. Its approach is historical, as it covers judicial treaty interpretation from St Catherine’s Milling to Grassy Narrows. By contextualizing the most recent change in light of the last 250 years of treaty making, we can see how the notion of Crown sovereignty has become entangled with the Westphalian model of the state (i.e., the state …
Bill 11, The Canada Health Act And The Social Union: The Need For Institutions, Sujit Choudhry
Bill 11, The Canada Health Act And The Social Union: The Need For Institutions, Sujit Choudhry
Osgoode Hall Law Journal
This article argues that the debate over the future of Medicare has been dominated by financial considerations at the expense of an examination of the place of supervisory institutions in the health care system. Supervisory institutions will be of central importance to the future of Medicare because any future system will include some national standards, which, to be effective, must be interpreted, applied and enforced by institutions of some kind. This article focuses on two specific institutional questions: the dismal record of federal enforcement of the existing national standards of the Canada Health Act, and the pressing need for dispute-settlement …
The Characterization Of Barriers To Interprovincial Trade Under The Canadian Constitution, George Vegh
The Characterization Of Barriers To Interprovincial Trade Under The Canadian Constitution, George Vegh
Osgoode Hall Law Journal
This article identifies barriers to interprovincial trade as a legislative subject matter under the constitutional division of powers. It argues that interprovincial trade barriers should be characterized in terms of the disproportionate impact that provincial measures have on the flow of trade between the provinces. The term "disproportionate impact" means the measures' impediments to the flow of trade which are not necessary to implement the objectives of provincial legislation. This method of identifying trade barriers has been used to address trade barriers and other arrangements, such as the General Agreement on Tariffs and Trade, the Canada-United States Free Trade Agreement, …
Culture And The Canadian Constitution, Patrick J. Monahan
Culture And The Canadian Constitution, Patrick J. Monahan
Osgoode Hall Law Journal
This article examines the current division of powers over cultural matters in the Canadian Constitution and the manner in which the 1992 Charlottetown Accord would have altered that distribution. During the debate over the Charlottetown Accord, it was argued by the federal government and the provinces that the Constitution allocates primary legislative responsibility over cultural matters to the provinces. Therefore, the cultural amendments in the Accord which would have recognized the provinces' exclusive jurisdiction to make laws in relation to culture were justified on the basis that they merely codified the status quo. This paper challenges the belief that the …
Getting The Political Architecture Right, Richard Cullen, Peter Hanks
Getting The Political Architecture Right, Richard Cullen, Peter Hanks
Osgoode Hall Law Journal
As Australia approaches the twenty-first century, it finds itself, like a number of other Anglo-centred countries in the western world, including Canada, in the grip of continuing economic trauma. There has been a marked relative (and absolute) slip in general economic performance. This paper focuses on the linkages between this phenomenon and Australia's basic political architecture. It argues that, although renovation of Australian federalism is no panacea for these problems, there are linkages between Australia's aged, formal, political structure and its recent economic performance. Lack of attention to the task of serious, systematic renovation is allowing the present outdated political …
Devolution Or Disunion: The Constitution After Meech Lake, Calvin Massey
Devolution Or Disunion: The Constitution After Meech Lake, Calvin Massey
Osgoode Hall Law Journal
Professor Massey discusses the theoretical benefits of decentralized federalism and proposes constitutional changes to obtain those benefits and to respond to the disparate aspirations of the Canadian polity. He proposes that the provinces and federal government share concurrent authority over most powers, with provincial legislation paramount in cases of conflict. He suggests an empowered Senate, partially selected by the provinces and partially appointed by the federal government, aboriginal self-government, and territorial Senate representation. Finally, Massey proposes altering the constitutional amending formula to enhance public participation and facilitate amendment where unanimity is not critical.
Federalism And Comprehensive Environmental Reform: Seeing Beyond The Murky Medium, Rodney Northey
Federalism And Comprehensive Environmental Reform: Seeing Beyond The Murky Medium, Rodney Northey
Osgoode Hall Law Journal
This article examines the legal constraints that Canadian federalism places on comprehensive environmental reforms. Having specific regard for the Canadian Environmental Protection Act and its regulation of toxic substances, the article questions the ability of federal constitutional powers to support a broad scope for the statute. The article then examines two approaches to this problem. First, it examines an alternative vision of federalism which provides the federal government with broad environmental authority. Secondly, it examines various mechanisms of federal-provincial cooperation for their application to comprehensive environmental schemes. It concludes that these options provide enough scope to regulate environmental activities comprehensively …