Constitutional Forum (Journal)
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THE CHRISTIAN RIGHT, THE FEDERAL COURTS, AND THE CONSTITUTION IN THE UNITED STATES
No full textTwenty-five years have passed since the newly formed Moral Majority helped put Ronald Reagan in the White House and a Republican majority in the United States Senate. The Moral Majority was one organization (and its founder, the Reverend Jerry Falwell, one figure) at the centre of an emerging evangelical Protestant social movement. This movement was galvanized by two aims: defeating the Equal Rights Amendment,3 which Congress submitted to the states for consideration in 1972, and contesting the U.S. Supreme Court’s 1973 Roe v. Wade4 ruling, which recognized a constitutional right to abortion. In the early 1980s, “New Christian Right” was an accurate description of the first widespread public engagement of evangelicals in half a century
Jane Austen and the Council of the Federation
No full textAs I was preparing this article1 about the Council of the Federation, about the manner in which it differed from its predecessor, the Annual Premiers’ Conference, my thoughts were constantly harking back to my favorite English author, Jane Austen. Although the titles of her novels are different, and despite the fact that Elizabeth Bennet is not an exact replica of Elinor Dashwood,2 Jane Austen always writes the same story: the battle between reason and emotion, between sense and sensibility. Now, quite frankly, as do Alain Noël and others before me, I believe that the Council of the Federation is not more than a light institutionalization of the Annual Premiers’ Conference.3 It is the same story again. And one that also has to do with the tension between sense and sensibility. During my preparation, I also recalled the very first sentence of Jane Austen’s masterpiece Pride and Prejudice which runs as follows: “It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife.” Amusingly, the Council of the Federation’s philosophy could be articulated in a similar fashion: “It is a truth universally acknowledged, that a federal government in possession of a good fortune, must be in want of provinces.
Arbitration Using Sharia Law in Canada: A Constitutional and Human Rights Perspective
No full textRecently, Canadian media reports warned that the Government of Ontario was considering the implementation of Sharia law as a judicial equivalent to Ontario law.1 Such reports were not accurate. Rather, the issue was whether arbitration by Islamic tribunals using Muslim law, which is often called Sharia law by non- Muslims, ought to be allowed under the auspices of general arbitration statutes.2 A cross-section of Muslim Canadians actively mobilized to oppose such a possibility through coalition- building and letter-writing campaigns.3 In June 2004, Marion Boyd was commissioned by the province to examine the issues surrounding the use of private arbitration to resolve family and inheritance cases, and the impact of the same on vulnerable people. The Boyd Report, tabled in December 2004, recommended that religious institutions be allowed to arbitrate such disputes on the basis of religious law, provided that a list of forty-six safeguards were adhered to.4 After the Boyd Report, some religious groups argued in favour of religious adjudications.5 Much public debate ensued, leading to a vociferous statement by Premier Dalton McGuinty, who vocally rejected religious adjudication.6 Further, the Government of Ontario outlined that it “will ensure that the law of the land in Ontario is not compromised, that there will be no binding family arbitration in Ontario that uses a set of rules or laws that discriminate against women.”7 The province amended its Arbitration Act8 and Family Law Act9 to provide that family arbitrations were conducted “in accordance with Ontario law or the law of another Canadian jurisdiction.
R. V. SHARPE AND THE DEFENCE OF ARTISTIC MERIT
No full textThe impact of judicial decisions is sometimes most significant and most controversial in relation to matters that were not at the forefront in the legal proceedings. The decision in R. v. Sharpe1 may be such a case. In this decision, the Supreme Court of Canada upheld, with minor qualifications, the offence of private possession of child pornography under section 163.1 of the Criminal Code.2 The case was argued and resolved largely as an issue of privacy — could the prohibition on child pornography extend to private possession, while remaining within constitutional limits
STRENGTHENING THE ECONOMIC UNION: THE CHARTER AND THE AGREEMENT ON INTERNAL TRADE
No full textThe standard story in public policy and constitutional circles on the relationship between the Constitution and the Canadian Economic Union is a story of constitutional failure: that the Constitution has proven to be ineffective at furthering the integration of the Canadian economy.1 As a consequence, securing this goal requires either constitutional amendment or, in the face of the impossibility of large-scale constitutional change, the use of non-constitutional policy instruments such as the Agreement on Internal Trade, an intergovernmental agreement designed to remove barriers to interprovincial economic mobility.2 In this paper, I challenge this view. My argument is that constitutional litigation under the Charter’s3 mobility rights provisions can serve as an effective alternative to the various mechanisms (adjudication and negotiation) established under the AIT to further the integration of the Canadian economy. Moreover, I suggest how constitutional litigation can actually strengthen the AIT, rather than simply serve as an alternative to it
INTRODUCTION
No full textLors de la collation des grades de l’Université de l’Alberta, le 18 novembre 1998, Claude Ryan, à qui l’on remettait un doctorat honorifique, déclarait : « Il serait superficiel de croire que l’ère des nations est terminée. Les questions que l’on doit se poser à ce sujet portent non pas sur la survie des nations comme telles mais plutôt sur la nature et l’étendue des pouvoirs qu’exerceront les gouvernements nationaux...
SECTION 33 AND THE RELATIONSHIP BETWEEN LEGISLATURES AND COURTS
No full textThe introduction of the Constitution Act, 19821 was greatly debated. While many of the substantive provisions received considerable attention by various committees and interested organizations, the limitation provisions, sections 1 and 33 were particularly contentious. Today, I would like to discuss the early vision of the new relationship to be forged between the judicial and legislative branches of government.2 Sections 1 and 33 were intended to strike an appropriate balance between law-maker and law-reviewer. Each safeguarded abuse by the other. Throughout the drafting period, however, many expressed concern about shifting Canada’s political system from a parliamentary supremacy to a constitutional one. Specifically, how each would respond to their new roles in light of sections 1 and 33. To determine whether these concerns have materialized, I will compare these suspicions with the actual relationship that has evolved between the courts and legislatures since the entrenchment of the Constitution Act, 1982
ROCKET V. ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO: PROFESSIONAL ADVERTISING AND THE LIMITS OF REGULATION
No full textROCKET V. ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO: PROFESSIONAL ADVERTISING AND THE LIMITS OF REGULATIO
CONSTITUTIONAL REFORM: DOES ECONOMIC EFFICIENCY FIT IN?
No full textCONSTITUTIONAL REFORM: DOES ECONOMIC EFFICIENCY FIT IN
