Constitutional Forum (Journal)
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Envisaging Canada in a Disenchanted World: Reflections on Federalism, Nationalism, and Distinctive Indigenous Identity
No full textI have taught law for more than twenty years. I have gradually become convinced that jurists (like myself), political scientists, and philosophers who are interested in federalism and Indigenous issues — whether they themselves are of Indigenous origin or not — do not always take sufficient consideration of the Trickster in their understanding of these matters. Their intellectual constructions lack asperities. No provision is made for the unforeseen. Everything is just too smooth. Above all, these constructions often overestimate or underestimate the capacity of human beings to think by and for themselves
Daniels v Canada: Supreme Court Ends 150 Years of Political Football
No full textOn October 8, 2015, after more than 14 years of litigation, the Supreme Court of Canada heard arguments in the Daniels case, which centers around the fundamental question of whether the term “Indians” as used in section 91(24) of the Constitution Act, 1867 includes Métis and Non-status Indians. In seeking various declarations, the Plaintiffs hoped to bring to an end a longstanding jurisdictional dispute between the Provinces and Canada that resulted in Métis and Non-status Indians being treated like “political footballs.”The purpose of this short summary is to provide the reader with background information and to describe the submissions of the Métis Settlements General Council as intervener. It should be noted that the case raises a number of issues not addressed in this paper that may nonetheless be of interest to the constitutional bar regarding the Court’s power to grant declaratory relief, including whether and how to apply the interpretive principles (are progressive and purposive interpretation two sides of the same coin?), along with the ongoing dialogue between Canadian citizens, Parliament, and the Court
Penser le Canada dans un monde désenchanté : réflexions sur le fédéralisme, le nationalisme et la différence autochtone
No full textJ’enseigne le droit depuis plus de vingt ans. Et, petit à petit, j’en suis venu à la conviction que les juristes (comme moi), et les politologues et philosophes intéressés par le fédéralisme et la question autochtone — qu’ils soient eux-mêmes autochtones ou pas — , ne tiennent pas toujours suffi samment compte du Trickster dans leur façon d’appréhender le monde. Leurs constructions intellectuelles sont dépourvues d’aspérités. Elles ne donnent pas prise à l’imprévu. Tout y est trop lisse. Et surtout, ces conceptualisations surestiment ou sous-estiment bien souvent la capacité des êtres humains à se penser eux-mêmes
The SCC Reimagines Freedom of Association in 2015
No full textAfter reviewing the evolution of the Court’s approach to freedom of association (though excluding the Court’s discussion of the corollary freedom not to associate), this paper reviews the Supreme Court of Canada’s 2015 cases on freedom of association, also known as the 2015 Labour Trilogy, and discusses their implications: Mounted Police Association of Ontario v Canada (AG) addressing the right to join a union; Meredith v Canada (AG) addressing legislation overriding predetermined wage increases; and Saskatchewan Federation of Labour v Saskatchewan addressing the right to strike.The paper then discusses how the 2015 Labour Trilogy reinvigorated the values underlying the Canadian Charter of Rights and Freedoms and how it applies to strikes not directly relative to collective bargaining
Trinity Western Law School: "To Be or Not to Be -- That Is the Question"
No full textThis paper consists of three parts. Part 1 provides the facts, which have brought the Trinity law school issue into the public arena. Part 2 presents in brief the legal issues involved, focusing on how the Nova Scotia and Ontario courts have attempted to adjudicate the conflict. Part 3 looks at the ostensible incommensurability of the conflict between positive and negative liberty in this case and ends with the suggestion that, on balance, the argument weighs in favour of Canadian law societies approving the accreditation of Trinity’s law school
The Supreme Court\u27s New Labour Trilogy: Momentous Decisions and a Modest Critique
No full textIn this paper, with a nod to the expositive force of organizing thoughts in triads, I offer three criticisms of the Supreme Court’s recent work re-shaping what the constitutional protection of freedom of association means in the field of labour relations law: (1) it ignores the reasonably clear intent of the drafters of the Charter; (2) it has been inconsistent and unpredictable, producing destabilizing effects; and, (3) it usurps to the judiciary a role in regulating labour relations that is better left to legislators
Comparing Canadian and Colombian Approaches to the Duty to Consult Indigenous Communities on International Treaties
No full textIn recent years, the development in Canada of a constitutional duty to consult Indigenous communities has had ramifications on government decision-making that are widespread, far-reaching, and potentially expansive. The modern duty to consult doctrine developed in a series of cases in 2004-2005, ensuring that governments have a duty to consult proactively with Aboriginal communities whose Aboriginal or treaty rights may be adversely impacted by a particular administrative decision, even in the face of uncertainty about the scope of asserted rights in the absence of a final settlement or court decision. Case law development on the duty later established that the duty is also triggered in the context of an early, strategic decision that may determine later administrative decisions. Some have put forth the argument that the duty may be triggered prior to the adoption of legislation; adjudication on that issue is currently making its way forwardthrough the courts. The Hupacasath First Nation case, recently decided at the Federal Court of Appeal, raised another question, that of whether or not consultation was owed to Aboriginal communities in the context of international treaty negotiations. Although the federal government has actually engaged in such consultation in some instances so as to avoid infringing Aboriginal and treaty rights, the case raised the complex question of whether it is constitutionally required to do so in order to comply with the duty to consult doctrine. On the particular facts of the case, the issue concerned the Canada-China foreign investment treaty, which the Hupacasath First Nation argued was apt to lead to later infringements on Aboriginal rights. Both the Federal Court and the Federal Court of Appeal rejected these arguments. Their rejection has broader implications, but we shall argue that it leaves open the possibility that the negotiation of some internationaltreaties may trigger the constitutional duty to consult, thus opening a complex nexus between constitutional and international law
Trial Lawyers of British Columbia v British Columbia: Section 96 Comes to the Access to Civil Justice Debate
No full textYou can bemoan or you can celebrate, but you cannot deny that the Canadian Charter of Rights and Freedoms fundamentally changed Canadian criminal procedure. In contrast, until recently, civil proceduralists could confidently ignore constitutional law. All attempts to constitutionalize principles of civil justice had been rebuffed by the courts. That appears to be how the framers of the Charter wanted it. The Legal Rights set out in sections 7 through 14 of the Charter speak of deprivation of “life, liberty and security of the person”, “arrest” and “detention”, being charged with an “offence” or of “punishment and treatment”. Those caught up in the criminal justice system are precisely the kind of unpopular minority the framers thought needed protection from populist majoritarianism. On the other hand, the Charter demonstrates no desire to interfere with the long tradition of provincial autonomy and experimentation with civil justice. As a result, the Court early on decided that even where the Legal Rights are unclear, they do not apply to civil litigation.But the Supreme Court of Canada’s decision in Trial Lawyers Association means that those interested in civil procedure, and its possible reform, can no longer ignore the Constitution without risk. The Court held that a right of access to superior courts is protected by section 96 of the Constitution Act, 1867, as informed by the unwritten principle of the rule of law. British Columbia’s hearing-fee scheme — in place since before Confederation — was held to be unconstitutional because its exemption for the “impoverished” was found not to be wide enough to protect that right for middle-class would-be litigants. This comment will argue that the impact could be significant, since all issues in civil and family procedure can be reconceived in terms of access to courts. Unfortunately, the constitutionalization of civil procedure is unlikely to improve the systemic problems that deny middle class Canadians the realistic option of a day in court
A Project to Reduce Canadians\u27 Constitutional Illiteracy
No full textHow is it determined who is prime minister? Does the leader of the party that wins the most seats in the House of Commons, or that gets the most votes in the election automatically become prime minister? Who appoints cabinet ministers? Do cabinet ministers have to be MPs? Who appoints deputy ministers? What are deputy ministers? What are parliamentary secretaries? What is the PCO? What is the PMO? How is the Governor General selected? What are the Governor General’s powers? What is the role of the Queen in governing Canada? What contact, if any, can senior civil servants have with opposition parties? What contact, if any, can government leaders have with judges? How are treaties with foreign countries ratified? Why does Canada have treaties with Aboriginal peoples? Are there any constraints on federal spending in areas of provincial responsibility? What is the constitutional status of the northern territories and how does the federal government’s relationship with them differ from its relations with the provinces?A Canadian citizen who wants to know how her country is governed should be able to get clear, authoritative answers to these questions without much trouble; so should a civics teacher in a school classroom or a person preparing immigrants for Canadian citizenship. These are not small technical questions — they are basic to knowing how Canadian government and democracy work — yet the citizen who looks for answers to these questions in the written text of Canada’s Constitution will look in vain
Legislative Vehicles and Formalized Charter Review
No full textWhen and how does the Parliament of Canada examine proposed legislation for its compliance with the Canadian Charter of Rights and Freedoms? While the Federal Court has observed that — with respect to legislation — “Parliament plays a crucial examination role in identifying inconsistencies with guaranteed rights,” Parliament cannot be said to have adopted formal obligations in this regard.Although parliamentarians consider the constitutionality of proposed legislation through various means, formalized review occurs only with respect to specific classes of legislation and does not mirror how courts review impugned legislation. This article compares and contrasts current parliamentary practices aimed at Charter compliance and explains where gaps exist