Constitutional Forum (Journal)
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How Does it Feel to be a Problem? Inclusion and Exclusion and Quebec’s Bill 21
No full textThis paper seeks to analyze Bill 21 through the frameworks of minority rights and reasonable accommodation. It problematizes the “problem” of the veil, arguing that legislative deveiling, notably Bill 21, is a symptom of a larger crisis, namely the triumph of majoritarian politics over the constitutional protection of minority rights. Worse, while such laws are the result of popular discomfort with difference, their enactment further entrenches the binaries and assumptions that fuel such populist discomfort. As such, Bill 21 provides a useful case study of the role of law in responding to popular anxieties and in shaping perceptions of difference and equality in the first place
The Legal Status of LGBTQ+ in China: A Law and Politics Perspective
No full textThis short article analyzes the rights and status of LGBTQ+ individuals in China from the perspective of the relationship between law and politics. More specifically, it aims to further the discussion surrounding the legal status of LGBTQ+ individuals by examining the power dynamics and interplay among the government, society, and business interests that have collectively shaped laws and policies affecting LGBTQ+ communities alongside culture and ideology
Legislative Context in Sentencing: A Closer Look at R v Sharma
No full textThis short paper argues that the Sharma majority’s methodological clarification vis-a-vis section 15 is consistent with how courts understand legislative design choices in Canadian law and is a necessary first step to understanding the legal effect of an impugned law. Properly understood, the clarification should not lead to a problem of double deference. Rather, it is an encapsulation of an age-old idea: that “it is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers.
Notwithstanding Minority Rights: A Canadian Democratic Failure
No full textThis comment takes up the question of what considerations ought to shape our understanding of section 33. We do not engage directly with the attributes or failings of the current and limited judicial treatment of section 33. Instead, our focus is on the political ramifications of using section 33 in the current political climate. More specifically, we use Quebec’s Bill 21 as a reference point to highlight some deep issues about how section 33 has been integrated into and shapes constitutional discourse. Our analysis pays critical attention to the unique position of Muslim women in Quebec and is framed from the perspective of intersectional feminist equality thinking. From this grounding, we argue that the current legal treatment of section 33 establishes, contrary to the promises of proponents of the override, no equilibrium between parliamentary and judicial powers. Rather, section 33 unavoidably guarantees that majoritarian politics prevail, irrespective of the minority rights issues at play. Prioritizing majoritarian opinion and interests in this manner, we suggest, threatens great damage to the constitutional democracy we think we all should want. The result is a democratic comity in which critical aspects of substantive equality and participatory rights for the most vulnerable and marginal are negated
The Prudent Parliament and Section 24(1)
No full textThe appeal of Attorney General of Canada v Power was heard by the Supreme Court of Canada on December 7, 2023. The case concerns the availability of damages under section 24(1) of the Charter for legislative action. In response, our paper argues: 1) the text of section 24(1) does not bar damages for unconstitutional legislation; 2) the history of section 24(1) points towards damages for legislative action; 3) unwritten constitutional principles suggest courts should treat different types of damages differently; 4) precedent suggests Crown liability for unconstitutional legislation should proceed on a negligence standard for some types of damages; and 5) meeting the standard of care for such negligence should require Parliament to obtain legal advice. In advancing these arguments, we reconsider early Charter scholarship on the value of private law concepts to the unique public law context of section 24(1) in light of more recent jurisprudence
Special Issue Foreward: The Notwithstanding Clause
No full textIn this foreward, the Right Honourable Beverley McLachlin provides a summary of the many questions that are currently swirling around the notwithstanding clause and its place within the Canadian constitutional order. These include questions about the relationship between the notwithstanding clause and other constitutional provisions (e.g. section 28 of the Charter) and questions about the legitimacy of pre-emptive invocations of the clause
From Gross Disproportionality to Human Dignity: Redefining Section 12 in the Context of Mandatory Minimum Sentences
No full textIn this short paper, we contend that human dignity must remain at the heart of the section 12 analysis, and should be strengthened in future cases that will be tackling the remaining mandatory minimums. In so doing, we critically examine the Supreme Court’s recent development of the section 12 framework, particularly in light of the 2023 mandatory minimum jurisprudence, with a specific emphasis on the concept of human dignity. The analysis centers on the role of reasonable hypotheticals in advancing the primary objective of section 12 — safeguarding human dignity — by scrutinizing the three pivotal components of the gross disproportionality analysis. We suggest that the section 12 analysis focuses on proportionality and human dignity rather than the current “gross disproportionality” standard in assessing what constitutes cruel and unusual punishment. These suggestions are underpinned by an approach that considers proportionality a principle rooted in human dignity. Nevertheless, proportionality has its limits and therefore section 12 should be complemented by an approach that takes into account prison conditions and the effects of imprisonment on marginalized groups, which are rooted in inequalities. Finally, the analysis questions the third component of the gross disproportionality analysis, which calls for deference to the legislature in order to prioritize objectives that instrumentalize the individual and are contrary to human dignity. These objectives are problematic, we suggest, and best addressed within section 1 of the Charter
R v Lufiau, R v Varennes, and The Gamble of Litigating a “Right” to Jury Trials Outside of Section 11(f)
No full textIn light of recent events, changes to criminal law, and the advancement of social science, a renewed conversation on the right to select one’s mode of trial (or a right to a non-jury trial) under section 11(f) of the Charter is much needed. This paper aims to restart this conversation. To this end, the paper will briefly review the Lufiau and Varennes cases before discussing the risks of framing arguments on the “right” to a jury trial outside of section 11(f), like the parties did in these two cases. The last section of the paper will then expand on the drawbacks of the approach taken by the Supreme Court in R v Turpin, contrasting its argument with new social scientific studies and legal scholarship that challenge the impartiality and competence of juries
AB v Northwest Territories: A New Low for the Doré/Loyola Framework
No full textSince the advent of the Canadian Charter of Rights and Freedoms in 1982, the relationship between the Charter and administrative law has been somewhat rocky. The unique nature of administrative decisions has been perceived by some jurists as requiring an unnecessarily nuanced approach to Charter issues in the administrative law context, resulting in problematic decisions untethered from jurisprudential Charter reasoning and the text of the Charter itself. The most notable of these cases are Doré v Québec and Loyola High School v Québec (Attorney General). The legacy of these decisions, sometimes referred to as the Doré/Loyola framework, regrettably established that on judicial review, administrative decisions need only demonstrate a proper balancing of implicated Charter rights or elusively-defined Charter values with relevant governmental objectives, and that these decisions will only be reviewed on a standard of reasonableness rather than correctness. The recent decision of the Northwest Territories Court of Appeal in AB v Northwest Territories (Minister of Education, Culture and Employment) (“AB”) highlights how far down a slippery slope of constitutional misinterpretation the framework has allowed the law to slide
Patriation Paradigms: Sovereignty, Power, and Rights
No full textIn this article, I begin by exploring how nation-state sovereignty has been disrupted and challenged both externally and internally — bringing into question the idea that patriation ushered in an era of full-fledged Canadian sovereignty. I then turn to contested conceptions of rights — underscoring the importance of reimagining rights as sources of political empowerment and sovereignty. Such a reconceptualization means that rights become sources of enhanced jurisdictional authority, power-sharing, and self-governance. Thus, I seek to contribute to a rethinking of the two central dimensions of the patriation paradigm towards an approach that celebrates multiple and divided sovereignties and reframes rights as integral to empowerment