Constitutional Forum (Journal)
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Ford Focus: Constitutional Context and the Notwithstanding Clause
No full textIn this article, I return to the broader constitutional perspectives that the Ford judgment temporarily pushed aside. Examining the notwithstanding clause’s early academic reception, pre-Ford judicial treatment, and the arguments the Supreme Court considered and left unattended in Ford reveals the deep currents of constitutional argument and thought that have always characterized the notwithstanding clause. Excavating the plural perspectives that formed the background of the Ford litigation about the constitutional law of section 33 reveals the tangled weave of constitutional law and politics and the inchoate theories surrounding the clause’s meaning that defined the notwithstanding clause from the outset. Section 33 has always inspired multiple, sometimes conflicting, aspirations, accusations, and ideas about its function in Canada’s constitutional arrangements. Appreciating and navigating the balance points among these diverse constitutional perspectives helps to illuminate the full context of the notwithstanding clause in a way that should matter in generating a constitutional law of section 33 attentive to its distinctive place in Canada’s constitutional arrangements
R v Sharma’s “Clarification” of the Section 15 Framework and its Creation of Unique Barriers for Disability-Based Equality Claims
No full textThis article analyzes the re-framing of the section 15(1) test in Sharma and its potential implications for future equality rights claimants. After identifying the various ways in which Sharma altered the section 15(1) equality rights framework, it argues that this reframing poses unique and problematic challenges for disability-based equality claims
Abortion Rights Without Law: A Constitutional Reflection
No full textAbortion rights in Canada seem both too small and too big for law, or perhaps we only think so because of how we think about law, which confirms the view that we are better off without it. Maybe then we should ask a different question: is there an abortion rights law to which we would say yes? Can we imagine a statutory scheme, or, more provocatively, a legislative package, with a radically reimagined role for the state and its power? Could law assemble the diverse experiences of abortion into something material rather than abstract? Could law create a care infrastructure to support people in all their reproductive decisions and throughout their reproductive lives: the right to end a pregnancy, the right to continue one, and the right to parent your child in a safe and healthy environment? Wouldn’t we say yes to a law that holds space for this political future? In Canada, this is no speculative imagination. Our Supreme Court accepts that constitutional futures can take shape in innovative laws that affirm and reach ahead to our political aspirations. We need only make them
Federalism and the Notwithstanding Clause
No full textThis paper looks at possible responses to section 33 that could deeply affect the country’s underlying federal structure. It discusses three responses — disallowance, judicial review, and formal constitutional amendment — that have either arisen in public discourse or, I argue, warrant serious consideration. The ultimate goal of the paper is to offer a more complex way of thinking of about section 33 focusing on its relationship to Canadian federalism and, by implication, to the future course of the country’s democratic constitutionalism
Weaving Section 33 into the Charter Project: Citizen-Led Oversight as a Potential Way Out of the Legitimacy Conundrum
No full textThis article suggests that invocations of the notwithstanding clause should be evaluated by citizens\u27 juries: small groups of citizens tasked with hearing evidence from stakeholders (and experts) and passing judgment on the legitimacy of their government\u27s invocation of section 33. Above all, we argue that the establishment of such bodies would better redeem the democratic promise of section 33, which we characterize as an attempt to swap judicial scrutiny of laws and actions that impact fundamental rights for popular scrutiny. There is no perfect way to do this, of course, but we suggest that citizens\u27 juries could at least compensate for some of the limitations of the electoral scrutiny that is presupposed by section 33\u27s sunset clause while still offering a more ostensibly democratic review mechanism than judicial review
Editorial Introduction
No full textIn this editorial introduction, special issue editors Hoi Kong and Margot Young provide a concise overview of the various arguments presented in the special issue and highlight some of the key issues surrounding the future of the Charter\u27s notwithstanding clause. 
Editorial Introduction
No full textIn this editorial introduction, guest issue editors Hoi Kong and Margot Young provide a survey of the Constitutional Crossroads issue, noting its roots in a co-sponsored conference hosted at UBC\u27s Allard School of Law in January 2023
Comparative Constitutional Design: Northern Stagnation, Southern Innovation
No full textIt is hard to overstate the intellectual renaissance of comparative constitutional law over the last two decades. And yet, despite this tremendous renaissance, some challenges persist. This article focuses on one such challenge: the tendency of comparative constitutional law to draw on a small number of "usual suspect" jurisdictions based in the Global North. This establishes an overarching presumption of a supposed one-way flow of new constitutional ideas from the Global North to the Global South, but many of the most daring and innovative constitutional experiments vis-a-vis climate change, urbanization, and democratic renewal have in fact taken place in the Global South. This article accordingly argues that the Global South offers a valuable arsenal of novel constitutional design options that deserves more scholarly interest and attention
Not Merely Interpretative: The Supreme Court’s Application of Section 25 of the Charter of Rights and Freedoms and its Implications for Section 28
No full textIn this paper, I argue that the Supreme Court\u27s interpretation of section 25 of the Charter in Dickson v VGFN establishes an important precedent that may encourage the courts to reverse the jurisprudential trend against a proper interpretation of section 28, which is currently at issue in the Bill 21 case. I argue that both provisions — section 25 and section 28 — share key features, in that that although they do not establish freestanding rights, they are nonetheless of substantive import. Both provisions operate to condition, and even negate or block, the application of other sections of the Charter. In this sense, the tendency among commentators to characterize these provisions as either standalone rights guarantees or merely interpretative provisions is a false dichotomy. Indeed, a middle ground between these two options is precisely what the majority of the Court has now determined with respect to section 25, a reality that opens an obvious jurisprudential door to a similar reading of section 28
Overturning Ford
No full textIn this paper, I will argue that the Supreme Court should overturn Ford v Quebec, its leading precedent on the interpretation of section 33 of the Charter of Rights and Freedoms. After briefly stating the core holding of Ford, I will argue that the Court’s rules about overturning precedent dictate that the case be overturned. I will then argue for a new interpretation of section 33 that places a burden of justification on a legislature invoking the notwithstanding clause. I will conclude by noting some implications of my arguments for section 52(1) of the Constitution Act, 1982 (the supremacy clause) and by answering some possible objections to my argument