Constitutional Forum (Journal)
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Bill C53: An Ill-Advised Adventure of State Interference in the Constitutional Evolution of the State-Aboriginal Relationship
No full textThis brief commentary identifies some of the many open questions surrounding Bill C53, a bill that would provide a legal basis for the federal government to enter into treaties with Metis governments in the provinces of Alberta, Saskatchewan, and Ontario. It ultimately argues that this proposed bill is a premature and unwarranted intrusion into the constitutional evolution of the state-Aboriginal relationship
Charter Horizontality, the Public/Private Divide, and Responding to Injustice
No full textThe aim of this article is to explore the ways in which private law theory bears on the question of the horizontal effect of the Charter and the promises and limits of horizontality as a way of responding to injustice. Specifically, I ask whether the strategy pursued by the applicants in Cool World is likely to be effective in securing the progressive vision of social justice which Joel Bakan — co-counsel for the applicants — defended in his earlier work on the Charter. I offer a response to this question by showing how private law theorists understand the relationship between private law and “public” forms of distributive and social justice, specifically by framing private law in a way that insulates the practice of private law from public law values like those in the Charter. The concern that I raise, ultimately, is whether the horizontality argument in the Cool World case implicitly accepts broadly the same inadequate institutional response to injustice endorsed by these private law theories. That is, it focuses on the effects of unequal private power rather than reconfiguring private law relations to alter the power of the parties
“We do not really know why this approach was taken”: Explaining and Modifying the Supreme Court’s Approach to the Indirect Horizontal Effect of Charter Rights
No full textThis short comment is not a direct reflection on the case of Cool World v Twitter, which is the animating focus of this special issue. Rather, it takes the Cool World litigation as a cue for a more general reflection on the role that the Charter ought to play in such cases, where a private litigant is relying on the common law to inflict “contra-constitutional” harms on another private litigant. In this regard, the comment’s premise is that Cool World provides us with a much-needed opportunity for reconsidering the line drawn in RWDSU v Dolphin Delivery between private law legislation (to which the Charter is fully applicable) and the private common law (to which the Charter is weakly applicable). Ultimately, the comment suggests that this line is unsustainable, and that the Court should respond to this unsustainability by modifying its approach to cases where common law rights collide with Charter rights. In conclusion, I suggest that this modification should be guided by the Court’s own recent decision in Dickson v Vuntut Gwitchin First Nation, which provides a useful template for the management of conflicts between constitutionally prioritized and non-prioritized rights
Editors\u27 Introduction: Beyond Dolphin Delivery
No full textThe editorial introduction provides a summary of the special issue, which focuses on questions raised by the case of Cool World v Twitter regarding the application of the Charter of Rights and Freedoms to the common law in the context of private litigation. The issue developed out of a workshop hosted at UBC\u27s Allard School of Law by the Centre for Constitutional Studies, and is guest edited by Margot Young, Richard Mailey, and Anthony Sangiuliano
Notwithstanding the Backbench: Section 33 in Non-Government Bills
No full textThis article will not address the mechanics of notwithstanding clause, the arguments for and against its use, or how courts should approach its invocation — all of this has received extensive academic attention. Rather, the purpose of this article is to fill a narrow gap in the literature regarding the history of federal non-government bills introduced with a notwithstanding clause based on publicly available information. It will do so in three parts: first, it will briefly present some relevant parliamentary vocabulary and concepts; second, it will review the individual bills at issue, sorted by theme; and finally, it will conclude with brief comments and directions for future research
The Charter’s Forgotten Weapon: Reclaiming Section 28 For Trans Equality
No full textAs trans rights face unprecedented legislative attacks in Canada, courts continue to overlook one of the Charter’s most powerful equality guarantees. Section 28 demands equal protection across sex — but properly interpreted, it also compels recognition of gender identity and expression. This paper accordingly revives section 28 as a constitutional game-changer: a bold, underused tool to confront anti-trans laws and dismantle sexgender hierarchies
Surveillance Capitalism and the Charter: Infusing the Common Law with Charter Values
No full textThe premise of this paper is not new. Over two decades ago, John D R Craig argued the Charter value of privacy “should now be given effect in the Canadian common law, through a principled development of the tort category that affords relief for intentional interferences with the person.” This paper, however, builds on newer case law, including Jones, to explore and reinvigorate the promise of horizontality — that is, the application of constitutional values to private law. In so doing, I argue that Charter values of privacy must naturally fuse with common law to constrain private corporations’ data practices, facilitated through a combination of horizontality and existing legal principles. I proceed by exploring how privacy has been interpreted in the context of section 8 of the Charter, as well as the impact of surveillance capitalism on prevailing understandings of privacy. I then turn to what I view as the horizontal promise of section 8, its potential to bind private actors through its influence on private law, and the implications of such developments. I also briefly discuss the quasi-public function that some corporate surveillers have adopted
The Constitutional Status of Overbreadth: A Reply to Professor Stewart
No full textThe Supreme Court’s jurisprudence constitutionalizing overbreadth as a principle of fundamental justice under section 7 of the Charter adopted two understandings of the norm. The first conception operates in a “strict” sense wherein any effect of a law that is disconnected from its objective renders the law overbroad. The second conception applies in a “relaxed” manner by prohibiting any application of a law that overshoots its objective more than reasonably necessary. Hamish Stewart’s recent contribution to the literature agrees with and builds upon my prior argument that the strict version of the norm fails to qualify as a principle of fundamental justice. He nevertheless asserts that the relaxed norm ought to maintain its constitutional status. There are, however, two reasons to question this conclusion. First, the relaxed version is highly indeterminate as what is “reasonably necessary” to meet a legislature’s objective provides no concrete restraint on judges declaring laws violative of the Charter. Second, the relaxed norm does not attract adequate consensus as a principle of fundamental justice. Instead, overbreadth in this form operates as a “gross disproportionality light” that effectively crowds out the more intuitive principle of justice that laws must not impose grossly disproportionate effects
Ontario’s Ag-Gag Law, Where do Things Stand?
No full textOne of the most significant developments in both animal law and constitutional law in 2024 was the decision released in April by Justice Markus Koehnen of the Ontario Superior Court regarding the province’s Security from Trespass and Protecting Food Safety Act. In anticipation of the upcoming appeal of this decision, this paper offers offer a review of the situation in order to catch up those who have been following the issue but have not been able to read the decision or analyze the post-decision Regulation in detail, inform those who have not been aware, and assess where things currently stand before argument on the appeal begins
The Hidden Promise of Dolphin Delivery: Shields, Swords and Horizontal Application of the Canadian Charter of Rights and Freedoms
No full textThis paper poses a series of questions arising from the Supreme Court decision in Hill v Church of Scientology regarding the horizontal application of the Charter. What could have happened differently with Hill? What should have happened? Why did it not happen? Could it happen now, and, if so, what would the actual impact be? We answer these questions by examining a nascent horizontality jurisprudence in Canada, rooted in Hill (which, in turn, was rooted in Dolphin Delivery), that infuses Charter values into private law. Drawing on three streams of jurisprudence, we reveal how horizontality enables private litigants to invoke Charter rights and freedoms: 1) as shields to develop defenses against actions brought against them by other private actors (Part II); 2) as swords to infuse content into existing common law causes of action available to them (Part III); and 3) as swords to craft new causes of action (Part IV). As we explain, courts have treated the consideration of Charter values as mandatory — a result of section 52, and the Court’s interpretation thereof — when considering those values as shields in private law cases. When considering Charter values as swords, however, they have treated them as an optional influence. We argue that this distinction is unfounded, and that Hill prescribes mandatory consideration of Charter values in private law cases regardless of whether those values are invoked defensively or offensively