Constitutional Forum (Journal)
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“Irreconcilable? The Duty to Consult and Administrative Decision Makers”
No full textHaida Nation v British Columbia (Minister of Forests) ushered in a new era in Aboriginal law. In contrast to the emphasis on history in section 35’s first 20 years, the Haida Nation era offered a determinedly forward-looking approach to the reconciliation purposes ascribed to Aboriginal rights by the Supreme Court. Under the Haida Nation paradigm, and the duty to consult and accomodate it imposed on the Crown in relation to pre-proof aboriginal rights claims, reconciliation is a process that “begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense.” Nine years after Haida Nation, the legal parameters and the institutional structures involved in implementing the duty to consult and this new direction remain incomplete and formative
The Bilateral Amending Formula as a Mechanism for the Entrenchment of Property Rights
No full textMoves are once again underway to seek to constitutionally entrench property rights, with discussion occurring on the idea in a variety of contexts. In early 2011, federal Member of Parliament (MP) Scott Reid and Ontario Member of Provincial Parliament (MPP) Randy Hillier announced their intention to introduce private member’s bills in their respective legislative assemblies that would entrench property rights.1 They proposed to do so via the legal mechanism of using the bilateral amending formula in s. 43 of the Constitution Act, 1982, which allows for a constitutional amendment "in relation to any provision that applies to one or more, but not all provinces" to be made by just the affected province(s) and Parliament.2 Thus, if both had been adopted, their bills would have entrenched property rights in Ontario through the addition of a new subsection in the Canadian Charter of Rights and Freedoms. Although these particular bills were not introduced or adopted there is every reason to think that efforts to do so will continue
Introduction
No full textIn September, 2012, the Centre for Constitutional Studies and the Faculty of Law, University of Alberta, in collaboration with the Legal Education Society of Alberta, hosted a day-long Constitutional Symposium for legal practitioners and students of law. Legal academics and practitioners provided stimulating and thought provoking updates on recent jurisprudence in the constitutional area, focussing on Charter sections 2, 7 and 15, the division of powers, aboriginal rights and the Charter and criminal law. Of the twelve papers presented at this Symposium, eight are featured in this Special Issue of the Constitutional Forum
\u27Old Habits Die Hard\u27 - Reflections on the Scope of the Royal Prerogative Following Turp v Canada (Minister of Justice)
No full textIn Turp v Canada (Minister of Justice), politicianDaniel Turp MP sought judicial review in theFederal Court of Canada of the Canadian Government’sdecision to withdraw from the KyotoProtocol to the United Nations Framework Conventionon Climate Change
Public Interest Standing, Access to Justice, and Democracy under the Charter: Canada (AG) v Downtown Eastside Sex Workers United Against Violence
No full textIn 2012 the Supreme Court of Canada issued itsdecision in Canada (AG) v Downtown EastsideSex Workers United Against Violence (SWUAV).1Th e case centered on whether or not thoseinvolved in protecting vulnerable sex workershave standing to challenge the criminalizationof prostitution-related activities on their behalf.SWUAV represents a signifi cant break with previousjurisprudence on standing: it saw the Courttransform its vision of public interest standing,viewing it for the fi rst time as an access to justiceissue
Theory and Practice in the Government of Alberta’s Consultation Policy
No full textn this paper, I discuss the Government of Alberta’s policy and practice regarding consultation with Aboriginal Albertans regarding resource development, particularly the issuance to third parties of Crown dispositions that may have an impact on Aboriginal or treaty rights. My review of this subject matter is grouped around three conclusions, which are at first glance inconsistent. First, I argue that Alberta’s policy statements and the guidelines that it has issued to implement these fall far short of fulfilling—or even acknowledging in any meaningful way—the Province’s constitutional obligation to consult with Aboriginal Albertans and accommodate the latters’ concerns regarding resource development. However, in keeping with the distinction between theory and practice recognized by Warren Buffett and Yogi Berra, I concede that for reasons that are not reflective of any inherent merit in Alberta’s approach, the development and management of resource development appears to operate smoothly and efficiently, without any serious legal challenges or significant delays in the process. Finally, I suggest that the current practical success of Alberta’s approach is artificial and likely time-limited, and that without a more sincere Crown effort to fulfill its constitutional obligations the future of orderly development of natural resources is unlikely
Judges and Religious-Based Reasoning: A Response to Ginn and Blaikie
No full textThe Canadian jurisprudence on freedom of religion has tended to focus on the accommodation of religious practices rather than exploring the constitutionality of judicial reliance on religious-based reasoning. A recent article by Diana Ginn and David Blaikie seeks to argue that, in certain circumstances and under certain conditions, it would be acceptable for judges to rely on religious-based reasons in their judgments. Ginn and Blaikie see their recent article as being a continuation of sorts to their earlier piece, "Religious Discourse in the Public Square." While I found their earlier piece to be a persuasive defence of the use of religious-based reasoning in the public sphere, I have serious doubts over the constitutionality and applicability of their argument with regard to judges. It is the purpose of this paper to refute Ginn and Blaikie’s argument and to show that, in Canada, the use of religious-based reasons by judges is likely precluded by decisions of the Supreme Court of Canada.
Reflections on the Kitchen Accord
No full textIt is, indeed, an honour to be a part of the Patriation Negotiations Conference, sponsored by the Centre for Constitutional Studies, exploring the method and substance of Canada’s most significant constitutional development since Confederation. I want to say a word about why this conference matters. Canada’s search to understand its dynamics and its values was an important step in national self-awareness. To my mind, Patriation reflects both a point of constitutional maturity and a point of sophisticated intergovernmental process
Quelques opportunités et défis conceptuels, fonctionnels et politiques du fédéralisme
No full textLe fédéralisme, par définition, n’est pas une chose simple. Mais les choses simples ne sont pas nécessairement les plus belles, les plus efficaces ou les meilleures. L’État-Nation souverain paraît peut-être bien simple, mais il n’est pas pour autant le meilleur agencement politique que l’on puisse imaginer en toute circonstance. En fait, les différentes formes de fédéralisme visent particulièrement à dépasser les solutions parfois trop simplistes que le modèle de l’État-Nation souverain prétend offrir. Toutefois, c’est trop souvent en référence à ce dernier modèle que le fédéralisme se conçoit
Can a Middle Ground be Found on Senate Numbers?
No full textSeven years after Confederation, the House of Commons gave unanimous consent to a mo- tion to consider reforms to the Senate.1 The proposal included such radical notions as the adoption of a Senate electoral system based on proportional representation, the allotment of six senators for each region, and the fixing of terms to eight years, staggered to ensure the election of only half the Senate at a time.