Constitutional Forum (Journal)
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Advice to the Minister of Democratic Reform
No full textThe Conservative Party of Canada ran in 2006 on an agenda of democratic reform that was to include election dates for the Commons fixed at four years and Senate elections with fixed eight-year terms. After assuming power, its legislation for quadrennial fixed election dates was abrogated within two years of its passage and again two years later. Its Senate reform bills have never gotten beyond second reading and, in most cases, only made it to first. And the prime minister has twice convinced the Governor General to use her reserve powers to protect the government from parliamentary accountability. This paper outlines possible ways to rehabilitate the government’s reform agenda
Federalism Still Matters: The Securities Reference Case
No full textIn Canada, the financial industry rests upon “four pillars.” These are the securities, insurance, trust, and banking sectors. The first three have been, historically, regulated at the provincial level under the rubric of “property and civil rights,” while the fourth has been federally regulated under section 91(15) of the Constitution Act, 1867. As early as 1935, however, a Royal Commission recommended the establishment of a federal securities agency tasked with overseeing federally incorporated companies. Nothing came of that. In the 1960s and until last year, numerous other studies came up with proposals regarding the establishment of a federal securities regulator. Some proposed a federal regular coexisting with provincial counterparts, while others proposed one single federal regulator. How to get the provinces on board varied depending on the study that was conducted
The Assisted Human Reproduction Act Reference and the Thin Line Between Health and Crime
No full textWith respect to health, the Constitution Act, 1867 does not specifically assign legislative authority to any level of government. As a result, Parliament and provincial legislatures can enact laws relating to health. This inevitably leads to disputes between both levels of government over who has the authority to enact legislation to deal with whatever aspect of health is in question. However, it is now fairly well established that Parliament can regulate health using its criminal law power, among others, and that the provinces can do the same under various heads of provincial powers. The courts have also laid down a number of guiding principles to help delineate the legislative space occupied by each level of government in health and other subjects of shared jurisdiction. Still, controversy remains, as was the case in the Assisted Human Reproduction Act reference, which considered whether Parliament acted within its authority in using the criminal law power to enact provisions governing aspects of assisted human reproduction and related research
Whose Senate Is It Anyway?
No full textThis is no way to reform the Senate of Canada —but it just may be the only way. That is the dilemmathat will face the Supreme Court of Canada whenit hears a Reference case on proposals to turn theSenate into a partly or somewhat elected body inNovember 2013
Failing Students by Taking a Pass on the Charter in Pridgen v University of Calgary
No full textWhat is the appropriate approach when a judge is presented with a Charter issue? Should a judge simply decide the issue based on the arguments presented by the parties? Or should a judge seek out alternative and more limited reasons for deciding the Charter issue or even reasons to avoid deciding the Charter issue altogether? There is little guidance in Canadian academic literature on these questions. This article raises these questions in the context of a concrete example—Pridgen v University of Calgary—where judges on two Courts took three different approaches to a Charter issue
On The Trinity Western University Controversy: An Argument for a Christian Law School in Canada
No full textOver the past number of months, the proposed new law school at Trinity Western University (TWU) has come under signifi cant attack, including by many whom I count as academic colleagues within the Canadian Association of Law Teachers and by many within the Canadian law school community more generally. Th ese attacks have had the unique eff ect of subjecting TWU’s law school to a diff erent approval process than has been used for any other Canadian law school, with a dual-committee structure to apply additional scrutiny to it.2 Some have put their attacks explicitly in longer forms,3 and many others have signed petitions against TWU
Purposive Interpretation, Quebec, and the Supreme Court Act
No full textIn this brief paper, we examine the interpretive problem raised by Justice Nadon’s appointment. Because Binnie’s interpretation of sections 5 and 6 is one of the only discussions of this issue, and is likely to infl uence any subsequent legal analysis, we take his opinion as a starting point.
Redressing the Harms of Government (In)Action: A Section 7 Versus Section 15 Charter Showdown
No full textWhen considering the recent Charter claims of vulnerable individuals seeking to redress the harms of government action or inaction, there are two related trends in the appellate case law on sections 7 and 15 that merit attention.1 First, the Supreme Court has undertaken new approaches to equality rights under section 15(1) and 15(2) of the Charter, with a marked lack of success of claims in spite of (or perhaps because of) these approaches. The cases of Kapp,2 Withler,3 and Cunningham4 will be discussed in Part II as illustrations of this trend, along with cases where section 15 was given scant attention, such as Hutterian Brethren,5 AC v Manitoba,6 and Fraser.7 Second, there has been relative success of Charter claims under section 7 where there is strong evidence of harm to life, liberty or security of the person in circumstances where the government action was arbitrary, grossly disproportionate, or overbroad. In Part III, the cases of PHS Community Services,8 Adams,9 and Bedford10 will be shown to reflect this trend.11 These cases present an opportunity to discuss whether section 7 holds advantages over section 15 as a tool for disadvantaged persons challenging the harms of government (in)action, which will be addressed in Part IV. I conclude that while framing government harms as violations of life, liberty or security of the person may be a winning strategy for some Charter claimants, not all such harms can be presented in those terms, and the particular harms captured by section 15 must be given their due
The PHS Case and Federalism-Based Alternatives to Charter Activism
No full textIn the recent case of Canada (AG) v PHS Community Services (PHS, often called the Insite Decision), the Supreme Court of Canada purported to offer a case-specific decision limited to Vancouver’s Insite injection facility. The decision saw the Court declare that the Federal Minister of Health could not decline to continue an exemption from narcotics provisions for the Insite Clinic, which provided an injection site for narcotics users in Downtown Eastside Vancouver. Despite the Court’s claim to want a case-specific decision, I argue in the present discussion that by basing their decision on section 7 of the Charter, rather than using the alternative federalism argument that was available, the Court adopted a more activist route with more disruptive future legal consequences
The Perfect Storm: Section 12, Mandatory Minimum Sentences and the Problem of the Unusual Case
No full textIn Wolfgang Peterson’s enjoyable 2000 film, The Perfect Storm, starring George Clooney and Mark Wahlberg as fisherman in a doomed struggle against Mother Nature, a wonderful scene shows a local weatherman/meteorologist, flushed with excitement, outlining the details of an incoming mega-storm to a member of the newsroom