Constitutional Forum (Journal)
Not a member yet
551 research outputs found
Sort by
Emergence of Contemporary Indigenous Restorative Justice in Canada
No full textFrom time to time, I have been asked to write on Indigenous rights in Canada, which poses a challenge because there are many Indigenous Nations in Canada each with their own differing communities, cultures, and histories. This time I was asked to write about Indigenous restorative justice in Canada. I have been personally involved in and followed Indigenous justice issues for many years, both as a lawyer and as a jurist. This piece is my attempt to articulate the emergence of Indigenous restorative justice across Canada from its earliest days beginning in the 1960’s to the present date. It should acquaint the reader with an overview with sufficient references to allow one to pick up the threads to continue follow the evolution of Canadian Indigenous restorative justice into the future
Living Dead Constitutionalism or Why Old Constitutional Worlds Are Never Lost for Good: A Comment on Rosalind Dixon’s Responsive Judicial Review
No full textThis review essay reflects on Canadian antecedents and inspirations for Rosalind Dixon’s comparative political process theory. The first section focuses on the articulation of two theories of judicial review under the Charter by Patrick Monahan and Kent Roach that intersect at many points with Dixon’s own account of constitutional review under a written bill of rights. The second section then turns to elements of the Canadian pre-Charter experience that were missed or neglected by those theories and shows why Dixon’s theory nicely captures their internal logic, while the third section returns to the tensions and complexity of Canadian constitutional culture identified by Cairns. Neither solved nor gone, these tensions are revealing of a limitation — or at least an unstated assumption — in most normative theories of judicial review based on deliberative accounts of constitutionalism, including Dixon’s own
Out of the Shadows: Responsive Judicial Review and the Resurgence of the Notwithstanding Clause
No full textThis paper argues that the recent resurgence of section 33 of the Canadian Charter of Rights and Freedoms represents a generational challenge to both the role of courts and the legitimacy of fundamental rights. In this light, the paper argues that Rosalind Dixon’s theoretical framework prescribes a self-weakened form of judicial review in order to preserve the courts’ role as democratic constitutional guardians in the medium term. However, some Canadian courts have gone in the opposite direction, opting for a super-strong form of judicial review. As Dixon cautions, this form of judicial review may be very detrimental in the medium term
Deconstructing City of Toronto: Unwritten Constitutional Principles and Responsive Judicial Review
No full textThis article distinguishes between two conceptions of unwritten constitutional principles, which it refers to as the uncrossable thresholds and symbiotic conceptions. It examines the way that the Supreme Court of Canada engaged with these different conceptions in its 2021 City of Toronto judgment, suggesting that while the Court explicitly rejected the use of unwritten principles as uncrossable thresholds, it implicitly relied on a form of symbiotic principled analysis to reach that conclusion. Far from blunting the potential legal force of unwritten constitutionalism — which is what the Court evidently thought it was doing — I argue that this mode of analysis, insofar as it depends on a contextualized act of judicial balancing, leaves the door ajar for judicial invalidation of laws that are grievously out of step with key tenets of the Canadian constitutional order. In the article’s final section, I then argue that the Court’s methodology has the added benefit of creating space for what Rosalind Dixon characterizes as responsive judicial review, a form of review that gives courts a limited but vital role in correcting pathologies of the democratic process
Is the Notwithstanding Clause an Ouster Clause?
No full textThirty-seven years after its decision in Ford, the Supreme Court of Canada granted leave to appeal in 2025 against the Quebec Court of Appeal’s ruling in the Work Sikh Organization case. This appeal is poised to be the most significant development in the Court’s jurisprudence on section 33 since the 1988 Ford decision. The case, now known as English Montreal School Board, raises important issues and invites the Court to reconsider its stance in Ford. This article takes Ford as a starting point but addresses a question neither raised nor settled in Ford — whether the notwithstanding clause functions as an ouster clause. The Quebec Court of Appeal answered this question in the affirmative, but I argue that the Court was wrong. The notwithstanding clause does not oust the jurisdiction of a court to substantively review an impugned law or provision for Charter compatibility. This point is separate and distinct from the decision of the Supreme Court in Ford that the legislature’s use of section 33 cannot be reviewed substantively. Interpreting the notwithstanding clause as an ouster clause needlessly outlies section 33 by departing from standard principles of Charter interpretation, ignoring clear constitutional wording, and undermining the Charter’s purpose of protecting rights
A Promising Piece of the Puzzle: Human Dignity and the Role of Section 1 of the Charter
No full textIn this brief piece, I want to take up Major’s invitation to think about the “puzzle” and the “promise” of human dignity, but from a different perspective. In particular, I want to consider whether any negative implications of adopting a conception of human dignity that encompasses the elderly offender who is sentenced to die in prison can be rationalized within the broader constitutional framework. My suggestion is that the tension relating to the “young” and “elderly” offenders may be better addressed by focusing on the role of section 1 of the Charter. While that provision received negligible mention in Bissonnette, it may be used to justify sentencing elderly offenders to effectively die in prison for heinous crimes like murder because any other approach would fail to adequately deter others, who are similarly situated, from committing such crimes. As I explain, this framework falls back on early recognition by the Supreme Court that utilitarian arguments for increasing punishment are properly considered as justifications, under section 1, for imposing what are otherwise “cruel and unusual treatments or punishments.
Notwithstanding the Notwithstanding Clause: A Case for Constitutional Guardrails on Section 33 of the Charter of Rights and Freedoms
No full textThis paper argues that section 33 of the Charter of Rights and Freedoms — the (in)famous “notwithstanding clause” — is circumscribed by unwritten but binding constitutional principles including judicial independence; democracy; federalism; constitutionalism and the rule of law; and respect for minorities. We posit that the Canadian Constitution contains an irreducible minimum core of human rights that transcends the political compromise embodied in section 33
The Puzzle and Promise of Human Dignity: R v Bissonnette
No full textFor all its promise, human dignity is also a puzzle. This paper’s discussion of the use of human dignity in Bissonnette is approached from this perspective. The goal is not only to explore how human dignity is developed in the context of section 12 of the Charter but, in doing so, to also shine a light on some of the broader challenges and possibilities that courts will have to engage with when using human dignity in law. I will leave it to the reader to judge for themselves whether the use of human dignity in Bissonnette is more promise or more puzzle. I tend to see both present, and a glaring need to develop a more robust theorization of human dignity and its use in Canadian law
The Notwithstanding Clause and the Precedent in Ford: le dit et le non-dit
No full textThere are, it sometimes seems, two Fords alive in the legal mind: one is the case as decided, with its legal propositions then settled (le dit); the other is the case as it has grown in the legal imagination, with propositions not then settled (le non-dit). In the light of increasing calls for the precedent in Ford to be overturned to allow for substantive limitations on the use of the notwithstanding clause, there is reason to review le dit et le non-dit of the famous case of 1988: what did Ford say and what did it leave unsaid
The Place of Gladue in Constitutional Law
No full textWhile the Supreme Court of Canada has been a strong defender of the Gladue sentencing framework that it constructed under section 718.2(e) of the Criminal Code, the Court has so far declined to hold directly that the Gladue approach is constitutionally required. A majority decision in Sharma rejected one possible path to the constitutionalization of Gladue by way of section 15 of the Charter. But the Gladue principles have had a significant impact on the section 12 context, where the integration of Gladue into section 12 jurisprudence reveals much about how Gladue works in the everyday world of sentencing courts. Gladue fits well with section 12 because both protect and tolerate a highly discretionary system of sentencing law in which trial judges must be substantially free to respond to the mix of factors before them. In this system, Gladue functions as an epistemic demand but not as an exceptional law of sentencing for Indigenous people. While the Court has repeated that section 718.2(e) is aimed at reducing overrepresentation of Indigenous people in prison, it is simultaneously clear that judges must apply the universal, fundamental principle of proportionality when imposing sentences on Indigenous people. On two specific topics explored in this paper — the impact of imprisonment and the use of personal traits in reasonable hypotheticals — the Gladue approach has become highly consequential to the question of gross disproportionality under section 12 and, more generally, to the viability of mandatory minimums.