Law Commons^™

An Abortion Law Preformed, Joanna Erdman

Articles, Book Chapters, & Popular Press

This article engages the transcribed testimony of Carolyn Egan and Janice Patricia Tripp in R v Morgentaler as a critical moment of lawmaking. There is something revealing, often amusing, and sometimes devastating, when a lawyer asks a non-lawyer, in this case, a social worker: “What is the law?” The article focuses on those moments in their testimony when Egan and Tripp answered questions about the 1969 abortion law that made the law itself, its rules and procedures, the subject of examination, and in doing so, constructed new meanings of the law and social action in relation to it in the …

Draft Provincial/Territorial Legislation To Implement A Regulatory Framework For Medically-Assisted Dying Consistent With Carter V. Canada (Attorney General) 2015 Scc 5 And The Final Report Of The Provincial-Territorial Expert Advisory Group On Physician-Assisted Dying, Jocelyn Downie

Reports & Public Policy Documents

On February 6, 2015, the Supreme Court of Canada unanimously declared that the Criminal Code prohibitions on physician-assisted dying (both assisted suicide and voluntary euthanasia) violate the Canadian Charter of Rights and Freedoms. They immediately suspended the declaration for 12 months thus allowing the government time to craft new legislation. This paper is a contribution to the project of meeting that deadline -- it presents draft provincial/territorial legislation. This draft legislation is based on: 1) a thorough review of existing legislation in all permissive regimes throughout the world (reviewed through a "lessons learned" lens); 2) the requirements for constitutional validity …

Language Rights Remedies In The Supreme Court Of Canada: Invisible, Gentle, Or Stern Hand?, Dianne Pothier

Dianne Pothier Collection

The Supreme Court of Canada has used the context of language rights to establish significant contours of constitutional remedies. Language rights cases, both pre and post Charter, have engaged the full range of judicial intervention, from an invisible to a stern hand. Initially, the Supreme Court of Canada took a very passive stance in the context of bilingual language obligations of legislatures and courts. Despite lack express remedial direction from the Court, Quebec pulled out all the stops in its efforts to comply with the ruling with breakneck speed. In contrast, Manitoba adopted a leisurely pace in a half-hearted …

Charter Without Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms, Robert Currie

Articles, Book Chapters, & Popular Press

The first decades of the Supreme Court of Canada's Charter jurisprudence have coincided roughly with an increase in the extent to which Canada is affected by transnational crime and the nation's consequential participation in inter-state efforts to combat it. The court itself has remarked on its discrete "jurisprudence on matters involving Canada's international co-operation in criminal investigations and prosecutions." This article examines the Court's adoption of a different approach to Charter analysis in cases involving transnational elements and surveys where the Court has "drawn the line" in terms of Charter application. By way of analyzing jurisprudence on exclusion of evidence …

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

Not So Simple After All: A Comment On Ravndahl V. Saskatchewan, Dianne Pothier

Dianne Pothier Collection

Ravndahl became entitled to a survivor's pension under workers' compensation legislation upon the death of her husband in 1975, and disentitled upon remarriage in 1984. In 2000 she filed a statement of claim alleging the disentitlement constituted a section 15 Charter breach. The Saskatchewan government brought a pre-trial motion claiming the action was barred because of a six-year statute of limitations.

The Supreme Court of Canada assumed without deciding that the Charter applied. The author contends the Court should have affirmatively concluded that the Charter applies, on the basis that the claim is founded on the claimant's on-going status as …

The Sounds Of Silence: Charter Application When The Legislature Declines To Speak, Dianne Pothier

Dianne Pothier Collection

On first impression, the title of the Simon and Garfunkle hit classic hit "The Sounds of Silence" may seem like an oxymoron. But it does not take too much reflection to realize that silence can indeed be very expressive and therefore quite telling. While that can be true in any number of contexts, for the specific purpose of this article, I will examine only one: legislative silence. What is the legal significance of the legislature declining to speak on one particular aspect of a legal issue otherwise addressed in the legislation? More specifically, can the Charter be engaged to challenge …

Developments In Constitutional Law: The 1988-89 Term, A. Wayne Mackay, Dianne Pothier

Articles, Book Chapters, & Popular Press

This article canvasses the major developments from the 1988-89 term of the Supreme Court of Canada.

In terms of Charter jurisprudence there were major developments concerning equality rights, mobility rights, freedom of expression, and section 7.

More generally, there were also important developments in the federal trade and commerce power and broad hints as to the Supreme Court's leanings in relation to the federal spending power. There is clarification on how both federal and provincial laws affect federal undertakings, and re-affirmation of the ancillary nature of powers in relation to language. The Court reassesses the tests of when a provincial …