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Full-Text Articles in Law

Shop Talk: Conversations About The Constitutionality Of Our Labor Law, David M. Beatty Apr 1989

Shop Talk: Conversations About The Constitutionality Of Our Labor Law, David M. Beatty

Osgoode Hall Law Journal

In this essay Professor Beatty joins the debate as to how, if at all, the Charter of Rights and Freedoms and the process of judicial review can be integrated with our tradition of democratic rule and the sovereignty of the popular will. Rather than deal directly with the arguments of those who are critical of the entrenchment of a written bill of rights, Professor Beatty endeavors to cast the Charter and the new role of the judges in the best possible light. Analogizing the process of constitutional review to "conversations of justification" (using examples drawn from the labour law field), …


Constitutional Arguments: Interpretation And Legitimacy In Canadian Constitutional Thought, Joel C. Bakan Jan 1989

Constitutional Arguments: Interpretation And Legitimacy In Canadian Constitutional Thought, Joel C. Bakan

Osgoode Hall Law Journal

The author provides an analysis and critique of the various types of arguments advanced by Canadian constitutional jurists to establish formal grounds for the legitimacy of judicial review under the Canadian constitution. He demonstrates how two variables - constitutional truth and trust in the judiciary - are relied upon in past and contemporary debates about constitutional adjudication to construct four different types of argument about the legitimacy of judicial review. Each of these types of argument is then criticized in the context of recent Charter decisions. It is argued that none of them can sustain the burden of legitimating judicial …


Diagnostic Adjudication In Appellate Courts: The Supreme Court Of Canada And The Charter Of Rights, Carl Baar, Ellen Baar Jan 1989

Diagnostic Adjudication In Appellate Courts: The Supreme Court Of Canada And The Charter Of Rights, Carl Baar, Ellen Baar

Osgoode Hall Law Journal

Three distinct adjudicatory processes are found in appellate courts: decisional adjudication (applying principles), procedural adjudication (choosing among principles), and diagnostic adjudication (defining and developing principles). The Supreme Court of Canada has traditionally used procedural adjudication, in which the adversary process frames issues and generates supporting material. However, the Court's decreased caseload, its increased discretion to select cases, and the arrival of a new wave of issues under the Charter of Rights has shifted the Court's work to diagnostic adjudication. As judgment becomes less a choice problem and more a creative exercise, both the degree and kind of judicial involvement changes. …