Constitutional Forum (Journal)
Not a member yet
551 research outputs found
Sort by
Editors’ Introduction: Responsive Judicial Review
No full textThis editorial intro explains the origins of the special issue and provides a short synopsis of the papers within it. It is written by the co-organizers of the Responsive Judicial Review workshop, Richard Mailey (Centre for Constitutional Studies) and Vanessa MacDonnell (uOttawa Public Law Centre)
The Regime Politics of Responsive Judicial Review
No full textThis review essay begins with an overview of Dixon’s argument before explaining why it is empirically mistaken to argue that judicial review under the Canadian Charter of Rights and Freedoms is weak on her criteria. However, the essay will also argue for how it may be considered “weak” in a very different sense: because the Canadian Supreme Court generally uses the Charter to strategically serve the interests of allied political actors, particularly at the federal level. The essay ultimately argues that judicial review is largely, with some interesting exceptions, responsive to federal (central) regimes. In other words, all judicial review is politically responsive insofar as judges seek to maximize policy goals in the face of institutional constraints. In a context where appellate judicial appointments are controlled by federal (central) governments, as in Canada and the US, we should be particularly skeptical about the impact of judicial review in the highly contentious area of rights disagreements. Evidence from the US context, which has a much longer empirical track record with the judicial review of laws for compliance with constitutional rights, supports this claim
The Role of Democratic Majority Understandings of Rights in Rosalind Dixon’s Responsive Judicial Review
No full textIn Responsive Judicial Review, Rosalind Dixon argues that courts should confine themselves to giving effect to “democratic majority understandings of rights.” This is the crucial move that is explored in this article. While Dixon is in good company in making the case for a democratically responsive approach to judicial review, and while there may be good reasons for judicial review to be democratically responsive in a broad sense, there are risks to her more specific suggestion that judicial review should be disciplined by democratic majority understandings of rights. To illustrate these risks, the article turns to the example of provincial rules restricting trans and non-binary children’s pronoun use at school, which are currently the subject of litigation in Saskatchewan and Alberta
Negating Positive Rights: A Note on Mathur v Ontario
No full textThis note argues that the way the Ontario Court of Appeal dealt with and sidestepped the issue of positive rights in its recent decision in Mathur v Ontario is problematic. The note 1) defends the negative-positive rights distinction as conceptually cogent and important; 2) demonstrates that in order to “side-step” that distinction the Mathur Court ended up rejecting the very possibility of positive rights; and 3) explains why this rejection matters
Towards a Less Woolly Conception of Horizontal Effect
No full textThere are four key elements of the horizontal effect of constitutional rights of which I take stock in the four sections of this paper: 1) the law is everywhere; 2) private spheres and private law are as subject to the normative demands of constitutional law as any other societal sphere or any other sphere of law; 3) the effect of constitutional law on private law is as direct as it is on any other sphere of law; and 4) all human conduct, however private, has some degree of “public function.” In the unpacking of these four elements, I rely repeatedly on an elementary but profound Rawlsian characterization of political-liberal societies to dispel any Orwellian tones that any of them may seem to raise. I then end with a political-historical reflection — in dialogue with Joel Bakan and Sujit Choudhry’s contribution to this special issue — on the importance of cleaning up the conceptual disaster in the horizontal effect jurisprudence developed in Lüth and Dolphin
A Kick in the Caboose: Recovering the Judicial Horizontality of Constitutional Equality Rights
No full textThe peculiarity I examine in this paper is that the judiciary’s involvement in the horizontality of equality has little to do with modifying the common law applicable to private parties to create antidiscrimination duties. Rather, it is restricted to following behind legislative efforts to protect citizens from discrimination perpetrated by other citizens. Courts opt to interpret section 15 as in certain circumstances prohibiting legislatures from not going far enough to cover the “residual category” of horizontal private relations left untouched by an antidiscrimination statute, an approach that has been fittingly referred to as “caboose constitutionalism.” I argue that we Canadians should reject this approach — that we should kick the caboose. I sketch a theoretical blueprint for how to do this, and I make suggestions about how to operationalize this blueprint in practice
What is Sovereignty?
No full textIn reading Canadian Aboriginal rights jurisprudence, the central role that judicial acceptance that the British Crown was, and is, sovereign plays in Canadian law and politics becomes crystal clear. Before one can make such an assertion, however, once has to address the fundamental question that lies behind the assertion — what is sovereignty? Is there a principled definition of what “sovereignty” is that allows sovereignty to exist in a society governed by the rule of law? Or is sovereignty merely a legal fiction, created to provide an ex post facto legal justification for what is, in truth, merely an exercise of raw power? And if it is a concept that can exist in conjunction with the rule of law, how is sovereignty legally acquired and secured
What is Most Bothersome About Section 33: Or What Hasn’t Yet Been Said
No full textThe political revival of the notwithstanding clause in Canada’s Charter has led to an explosion of literature on section 33, yet few of the arguments about the legitimacy of the override are new. All of the basic positions in the debate were mapped out in the 1980s, resulting in an impasse over the merits of section 33 that we have not moved beyond. This commentary seeks to sidestep this debate by offering a new perspective on an old argument: the override seems out of place in the Charter because without it, the document embodies Ronald Dworkin’s theory of rights as trumps. What is most bothersome to opponents of section 33 is that its inclusion prevents the Charter from reflecting this Kantian, humanist conception of rights. By subordinating rights to the possible whim of the majority, the override reflects a populist or at best utilitarian conception. To read the Charter in this light is to see it not primarily as a legal instrument but as a moral statement
Responsive Judicial Review in Canada: Reflections on the Notwithstanding Clause and Beyond
No full textThis essay responds to the preceding papers in the special issue, which think through the implications of Responsive Judicial Review for Canadian debates on a range of questions, including: the scope of section 33 of the Charter, the role of unwritten constitutional principles, the protection of minority rights, federalism, and constitutional culture in Canadian constitutional law, and what the Canadian experience says about the promise and limits of responsive judicial review as a theory
Editorial Introduction
No full textAn introduction to issue 34:2 of the Constitutional Forum by the issue\u27s guest editors: Areeba Ismail, Maria Kalapurayil, and Nicole Ibalio (CCS Summer Students, 2025, and JD Candidates at the University of Alberta)