Constitutional Forum (Journal)
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The Notwithstanding Clause and the New Populism
No full textThe following article asks whether the notwithstanding clause contained in Canada’s Constitution Act, 1982 [Constitution Act]1 remains defensible where populists are in power. It ultimately dismisses two conventional justifications of the clause — one based on a principle of interinstitutional dialogue, one based on a majoritarian principle of legislative supremacy — before briefly considering possible amendments to the clause that may render it justifiable in a populist context (or more generally, where the political convention against using section 33 substantially weakens)
Some Pedagogical Reflections
No full textIt is always more challenging, and a little nerve-wracking, to deliver an instructional unit someone else has pulled together, even when there has been significant discussion amongst, and input from, the instructional team. This was particularly so for the Insite unit because we were using some “unconventional” texts and teaching methodologies. The material under discussion was both intellectually and personally challenging for many, and it was our first time delivering it. I offer some reflections as a member of the teaching team on the ways in which these particular challenges together produced a rich and exciting unit to teach, and if the student feedback is any indication, provided a significant learning experience
Applying the Burden of Proof and Creating Connections to Communities
No full textOne of the questions that lies at the heart of the Insite case is this: what kind of connections should exist between the law and the people it governs? In this short comment, I explore one of the ways this question informs the treatment of evidence and proof by focusing on the section 7 aspect of the case and the question of arbitrariness. With the goal of inviting discussion, I suggest that in cases involving the constitutional rights of marginalized individuals and communities, the concept of the “burden of proof” can provide a way to help understand what is at stake, and what criteria we might use to relate the burden of proof to values of equality and justice
Insite: Right Answer, Wrong Question
No full textI have entitled my five-minute comment: “Insite: Right Answer, Wrong Question.”1 The focus of my comments is on the division-of-powers approach used in the reasoning of Justice Huddart of the British Columbia Court of Appeal. Although asked to determine whether the legislative regime at issue was enacted validly, that is, whether it was either federal or provincial—the question that she wanted to answer, and did answer, was whether the matter should be federal or provincial. My reading of the majority reasons is that Justice Huddart (with Justice Rowles concurring) used the doctrine of interjurisdictional immunity (“IJI”) to reach the conclusion that she deemed to be the just outcome—that “the supervision of self-injections of illegally-possessed drugs in a provincially authorized and supported health care facility is dictated by the public interest in health care”2 and thus falls exclusively within provincial jurisdiction
Judges and Religious-Based Reasoning
No full textIs it ever acceptable for a judge in a secular liberal demecracyto rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less virtuous (although it may sometimes be less persuasive) to reason from one’s religious convictions than from any other comprehensive set of values, when advocating for or against public policy alternatives. We would suggest that this is generally also the case for elected representatives. Thus, in our view, it would be perfectly acceptable for a member of a legislature to buttress a call for increased funding for social services by reference to Proverbs 19:17: "One who is gracious to a poor man lends to the Lord." However, it is unconstitutional for a legislature to pass legislation for a religious purpose; therefore, legislators must recognize the distinction between advocating legislation designed to achieve a religious purpose and using religious arguments to support or oppose legislation designed to achieve a public purpose
Lost in Translation: Social Realities, Insite, and the Law in Legal Education
No full textWhat comprises a legal education? What is its breadth and depth? What approaches, processes and content fulfill our responsibilities as legal educators
Pedagogies of Mapping
No full textGenerations of students have engaged in the (more or less artistic) practice of doodling in the margins of their notes, and yet it is rare for law students to be given crayons and be directed to colour. In this note, I describe and reflect on the experience of using the visually based pedagogy of “mapping” as a tool for exploring the Insite case. This exercise took place at the end of the Legal Process module, after students had spent nearly two days of concentrated attention on the case and the issues raised by it. The class was divided into four groups, each of which was asked to imagine themselves as a newly formed government working group charged with the task of imagining more visionary ways of dealing with the problems of the “hard to house, hard to reach and hard to treat.” The first task was to work as a group to map out the terrain on which new solutions might be developed: to depict visually the hopes, fears, concerns, difficulties, convergences and possible strategic alliances created by drug use in the Downtown East Side (DTES)
Key Theoretical Issues in the Interaction of Law and Religion: A Guide for the Perplexed
No full textThere is perhaps no more important access point into the key issues of modern political and legal theory than the questions raised by the interaction of law and religion in contemporary constitutional democracies. Of course, much classical political and moral theory was forged on the issue of the relationship between religious difference and state authority. John Locke’s work was directly influenced by this issue, writing as he did about the just configuration of state authority and moral difference in the wake of the Thirty Years’ War. Yet debates about the appropriate role of religion in public life and the challenges posed by religious difference also cut an important figure, in a variety of ways, in the writings of Hobbes, Rousseau, Spinoza, Hegel, and much of the work that we now view as being at the centre of the development of modern political philosophy
The Notwithstanding Clause, the Charter, and Canada\u27s Patriated Constitution: What I Thought We Were Doing
No full textProfessor Whyte, in his article “Sometimes Constitutions are Made in the Streets: the Future of the Charter’s Notwithstanding Clause,” raises some intriguing points. He gives a historical review of the origin of the “notwithstanding” clause as it appears in the Canadian Charter of Rights and Freedoms, enacted in 1982. In the course of so doing, he appears to propose a distinction between “rights” – those claims which are included in the Charter, and “policies” – those claims which are protected by the activities of the legislative and executive arms of government. This is, I argue, a false dichotomy. It leads to the conclusion that the use of the “notwithstanding” clause can only amount to a suspension of rights in favour of achieving government policy
McIvor v. Canada and the 2010 Amendments to the Indian Act: A Half-Hearted Remedy to Historical Injustice
No full text2010 saw the twenty-fifth anniversary of two important legal developments in Canada: Bill C-31, which significantly amended the existing Indian Act, and the coming into effect of section 15 of the Charter of Rights and Freedoms. Section 15 was partially responsible for the introduction of Bill C-31. The Canadian government introduced Bill C-31 to address, among other things, gender discrimination in the system of Indian status. Bill C-31, however, fell short of its goal of introducing a gender-neutral system of Indian status under the Indian Act