Constitutional Forum (Journal)
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Status Quo Unacceptable; Senate Reform Possible; Abolition by Stealth Anti-Democratic
No full textI will begin by challenging the federal government’s assertion that the Supreme Court decisioneffectively makes meaningful Senate reform impossible. Then, I will discuss the move towardsabolition and explain why I think it’s both reckless and anti-democratic. Finally, I’ll conclude bymaking a pitch for a truly deliberative process — a national conversation on the future of the Senate in the form of a citizen’s assembly
A Principled Approach to the Positive/Negative Rights Debate in Canadian Constitutional Adjudication
No full textTh e debate between the respective desirabilityand enforceability of positive and negative rightshas long animated Canadian constitutionalscholarship. Identifying the state’s role in securingtheir ultimate fulfi lment can most clearlyshow the distinction between these two types ofrights
Constitutional Law and the Alberta Energy Regulator
No full textThis essay reviews general principles regarding a tribunal’s ability to consider constitutional law, and then makes observations about the Alberta Energy Regulator (the Regulator or AER) and its capacity to consider constitutional law. The questionultimately explored is the Regulator’s capacity to both respect and contribute to the fulfilment of the constitutional norms and obligations of the province that created it
Introduction
No full textThis issue of the Forum features four of the papers presented at the Constitutional Symposium hosted by the Centre for Constitutional Studies in fall 2013. The papers are stellar examples of the diversity of constitutional topics presented there
An Argument Against Accreditation of Trinity Western University\u27s Proposed Law School
No full textTO: J. René Gallant, President, Nova Scotia Barristers’SocietyFROM: Dianne PothierRE: Trinity Western University’s proposed LawSchoolDATE: Consolidation of written submissionsto the NSBS Executive Committee made January18, 2014, oral submissions made February13, 2014, and written submissions made March5, 2014 in response to TWU President’s Kuhn’spresentation on March 4, 201
L’abolition du registre des armes d’épaule : le rôle potentiel des principes non écrits
No full textL’appel devant la Cour suprême dans l’affaire Canada (Procureur général) c Québec (Procureur général), soulève une question d’interprétation constitutionnelle : est-ce que sa compétence en matière de droit criminel permet au Parlement d’abroger une loi et d’un seul coup détruire unilatéralement toutes les données recueillies sous l’égide de cette même loi
Nonpartisanship of Agents of Parliament: Bill C-520’s Redundant and Likely Unconstitutional Approach
No full textBill C-520 was introduced to ensure the non-partisanship of agents of Parliament and their staff. Partisan activities, however, are already regulated by the Public Service Employment Act and the Values and Ethics Code for the Public Sector. The bill would require public servants to disclose partisan history even though such history cannot be taken into account in hiring or retention; to disclose any intentions to engage in partisan activities even though such activities are already prohibited if they would impair one’s real or apparent impartiality; and to solemnly affirm a narrow version of the Values and Ethics Code for the Public Sector they already sign when accepting employment. Furthermore, Bill C-520 runs roughshod over employees’ Charter rights and freedoms by attempting to compel expression and seemingly encouraging discrimination in hiring. The bill discourages political association, without adequate regard to the constitutional requirements set out by the SCC in Osborne that individual circumstances be taken into account when restricting public servant’s political freedoms. In sum, significant portions of the bill are duplicative of existing regulation, introduce ambiguity into the regime for the regulation of public servants, and are of dubious constitutionality
Royal Succession and the Canadian Crown as a Corporation Sole: A Critique of Canada\u27s Succession to the Throne Act, 2013
No full textThe constitutionality of Canada’s Succession tothe Th rone Act, 2013 (Succession Act) will betested in Quebec’s Superior Court in the comingmonths. In a case brought by two law professorsfrom Laval University, with the government ofQuebec as an intervener, the Quebec SuperiorCourt will consider whether the Parliament ofCanada’s assent to a British statute is sufficient tochange the rules of royal succession for Canada
Administrative Law, Judicial Deference, and the Charter
No full textThe doctrine of judicial deference has been a touchstone in Canadian administrative law for thirty-five years. Put simply, the doctrine recognizes that administrative officials have legitimate authority to interpret the law, which means that judicial review is warranted only if an administrative decision is demonstrably unfair or unreasonable. While the tide of deference has ebbed and flowed over this period, most administrative decisions these days are assessed according to a standard of reasonableness instead of correctness
Searches of Digital Devices Incident to Arrest: R v Fearon
No full textOn May 23, 2014, the Supreme Court of Canada is scheduled to hear the appeal in R v Fearon. Fearon raises the questions of whether, and under what circumstances, police may conduct warrantless searches of digital devices seized under their common law power to search incident to arrest