Constitutional Forum (Journal)
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Advocacy Notwithstanding the Notwithstanding Clause
No full textMy topic is a fundamental social and political change and how it prompts advocates to think differently. We see the change on the part of legislatures. It’s a change from a paradigm of respect for rights to one of majoritarian willingness to override them without justification. I think this change imposes on advocates two responsibilities. One is to help judges to recognize the paradigm shift and its implications for them. The other is to conceive and frame arguments appropriate to the new paradigm — what I call advocacy notwithstanding the notwithstanding clause
Wahkohtowin in Action
No full textFrom a Canadian legal standpoint, a common concern expressed about Indigenous law is that it is difficult to track down. As Hadley Friedland summarizes, “even people who want to engage more deeply with Indigenous legal traditions struggle to understand how to do so.” In response, Friedland has proposed a case law method that allows Indigenous communities and legal practitioners to access Indigenous law. I believe the case law method can be valuable, but I hope to provide an illustration of the operation of Indigenous law by looking at how the Cree/Metis principle of wahkohtowin was infused through the work of the Maskwacîs Education Schools Commission (MESC)
What happens when the assumptions underlying our commitment to free speech no longer hold?
No full textA commitment to freedom of expression means that an individual must be free to speak to others and to hear what others may say, without interference from the state. It is said that the answer to bad or erroneous speech is not censorship, but rather more and better speech. Importantly the listener, and not the speaker, is seen as responsible (as an independent agent) for his or her actions, including harmful actions, whether these actions occur because he or she agrees or disagrees with the speaker’s message
Constitutionalizing (In)justice: Treaty Interpretation and the Containment of Indigenous Governance
No full textTo state that the Canadian criminal justice system has historically failed to provide adequate measures of justice for Indigenous peoples would be both an understatement and a mischaracterization. Canadian institutions of justice have not merely failed Indigenous peoples but were not designed to protect Indigenous interests to begin with. Designed by and for European newcomers who sought to institute their own legal orders, the justice system has functioned as an integral part of the structure of settler colonialism in Canada
Jordan’s Principle: Reconciliation and the First Nations Child
No full textThe Truth and Reconciliation Commission of Canada (TRC) was mandated to “document the individual and collective harms” of residential schools and to “guide and inspire a process of truth and healing, leading toward reconciliation.” The stories of survivors revealed the intergenerational and egregious harms of taking children from their families and communities. In seeking to redress the legacy of the residential schools era, the TRC Calls to Action include greater recognition of self-governance of Indigenous Peoples, as well as numerous recommendations for equitable funding of health, educational, and child welfare services
Ford et Irwin Toy 30 ans plus tard: une conversation avec le juge de Montigny
No full textIl y a trente ans, dans un contexte politique national tendu, la Cour suprême du Canada rendit jugement dans trois aff aires qui marqueront profondément la société et le droit constitutionnel canadien : Ford c. Québec (P.G.) et son pourvoi connexe, Devine c. Québec (P.G), ainsi que Irwin Toy Ltd. c. Québec (P.G.) décidées à quelques mois d’intervalle1. Sur fond de confl its linguistiques au Québec et de réforme constitutionnelle à l’échelle du pays, cette trilogie de la Cour suprême établira les fondements de la liberté d’expression et de l’application de la disposition de dérogation (la « clause nonobstant ») de la Charte canadienne des droits et libertés, de même que le caractère quasi-constitutionnel de la Charte des droits et libertés de la personne du Québec. Devant la Cour suprême, le gouvernement du Québec était représenté par Yves de Montigny — aujourd’hui juge à la Cour d’appel fédérale — à titre d’avocat principal. À l’occasion du trentenaire de la trilogie, le juge de Montigny fut invité à la Faculté de droit de l’Université de Montréal afi n de partager avec les étudiants de première année ses réfl exions concernant les trois arrêts de la Cour suprême de même que son expérience en tant que jeune avocat placé à l’avant-scène des grands débats constitutionnels de l’époque
Declarations of Invalidity in Superior Courts
No full textSection 52(1) of the Constitution Act, 1982 empowers courts to declare unconstitutional laws that are inconsistent with the Constitution “to the extent of their inconsistency.”1 Section 52 is a powerful tool in the hands of judges. For example, a claimant need not be directly affected by an unconstitutional law to raise a challenge to that same law,2 and once a court declares a law invalid under section 52, the law is effectively removed from the statute books.3
A key question is whether such a declaration, issued by one judge of a multi-member lower court, binds another judge of that same court. This phenomenon can be broadly described as “horizontal stare decisis.”4 But the Supreme Court has only explored horizontal stare decisis in the context of revisiting its own decisions.5 It has never opined on whether there is something special about horizontal stare decisis in lower courts, especially involving constitutional declarations under section 52; specifically, whether one judge is bound by another judge’s declaration of invalidity. This issue was directly confronted in the McCaw case at the Ontario Superior Court.6 Faced with a previous section 52 declaration of invalidity issued against section 33.1 of the Criminal Code, Spies J found that she was bound by that declaration. Accordingly, she found section 33.1 unconstitutional.
In this short paper, after reviewing the salient facts of McCaw, I argue that Spies J’s ruling is broadly consistent with Supreme Court constitutional remedies doctrine, which is basically formalist in nature and permits no discretion on the part of judges to depart from the binding effect of a section 52 remedy. I then deal with two objections to this position. Ultimately, while one can question the coherence of the Supreme Court’s doctrine, McCaw represents a defensible application of it
Senate Reform and the Political Safeguards of Canadian Federalism in Québec
No full textUnlike in Canada, the doctrine of political safe-guards of federalism is a tantalizing presence in American constitutional law that changing tides and moods have never completely submerged. The core idea is simple: political institutions in the United States have been designed to ensure that interests of the states are represented in the federal decision-making process. Thus, the judiciary does not need to intervene to police the federal division of powers
Infusing Reconciliation into the Sentencing Process
No full textA fundamental aspect of achieving proportionality in sentencing is enshrined in section 718.2(e) of the Criminal Code. It provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
The Crown and Government Formation: Conventions, Practices, Customs, and Norms
No full textThe Crown’s role in government formation is poorly understood in Canada. As demonstrated by the confusion surrounding the Lieutenant Governor’s duties in the aftermath of recent elections in British Columbia, New Brunswick, Prince Edward Island, and Newfoundland and Labrador, the functions of the Crown are misrepresented by politicians vying for power and misconstrued by commentators. These cases also suggest a degree of uncertainty about the Crown’s powers within the vice-regal office themselves. There has been a regrettable tendency to exaggerate the Crown’s involvement in government formation, which risks dragging the vice-regal representatives into the political arena or creating unrealistic expectations about the personal discretion they are able to exercise.
Misunderstandings about the Crown’s place in government formation can be traced to three gaps in knowledge. The first is a vague comprehension of the foundational conventions of responsible government as they pertain to the Crown. While the conventions that surround the government’s need to secure and hold the confidence of the elected house of the legislature are widely recognized, the conventions that frame the relationship between a first minister and the Crown are not. Second, there is confusion about what counts as a veritable constitutional convention. Conventions are too often conflated with other types of rules, notably practices, customs, and norms. Differentiating between these concepts helps us identify which constitutional rules firmly bind the Crown and which are more fluid and evolving. Thirdly, the lack of official explanations and transparency about the Crown’s functions and constitutional activities makes it difficult to appreciate the rules that surround the institution. While some vice-regal offices have made efforts to better articulate their constitutional roles, there is a need for greater openness and explanation.
My aim in this article is to offer an analysis of the types of rules that surround the Crown and government formation in Canada. I begin the article with a discussion of the difference between constitutional convention, practice, custom, and norms. I then examine how the Crown’s role in government formation are guided by these four types of rules. I conclude by recommending ways that vice-regal offices can better explain their functions and avoid confusion and controversy about their powers and personal discretion