Constitutional Forum (Journal)
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Charter Checks and Parliamentary Balances
No full textAccording to its most enthusiastic support- ers, the Canadian Charter of Rights and Free- doms1 fulfills two major functions in Canada’s democratic regime: 1) it shields minorities from the excesses of majoritarian decision-making, in effect guarding against the famous “tyranny of the majority”; and 2) it shields the majority from the excesses of power concentrated in the Canadian executive (“executive dictatorship”). While these two claims are in considerable ten- sion with each other, there is an even more im- portant conflict between each of them and the widely-accepted notion that most Charter cases arise from reasonable disagreements over cor- rect policy. It is difficult to work through these overlapping tensions without questioning the orthodoxy that judicial power under the Char- ter compensates for the lack of moderating checks and balances within our parliamentary system of government. To question that ortho- doxy is in turn to rediscover the merits of an older view, dating back to the founders, that did not consider the idea of parliamentary checks and balances to be an oxymoron. The rediscov- ery of parliamentary checks and balances does not imply the undesirability of additional judi- cial checks, but it does require a more nuanced understanding of those checks than the ortho- doxy provides
The Unlikely Union of Same-Sex Marriage, Polygamy and the Charter in Court
No full textFor several years now, I have been doing work on litigation surrounding same-sex mar- riage (SSM), and when I present my research (both at conferences and informally over drinks), I am almost invariably asked how court decisions legalizing SSM1 will affect the laws against polygamy. As a recent article in the To- ronto Star observed,2 gay marriage is often seen as a “slippery slope” to polygamy; some argue that it opens the jurisprudential door to other fundamental challenges to the traditional, mo- nogamous definition of marriage.3 For example, it is true that the Supreme Court of Canada de- cisively rejected the government’s argument in the SSM cases that the Canadian Charter of Rights and Freedoms4 was not intended to revo- lutionize fundamental social institutions. Re- cent developments in British Columbia appear likely to put this contention to the test
Conditions Under Which Québec Prefers a Strong Federal Government, or Why Decentralization is not Necessarily a Good Thing for Québec
No full textLet me begin by thanking the organizers of a Simon Fraser University federalism work- shop for inviting a non-academic to share some reflections about federalism.1 This file cannot stay closed forever. While preparing these re- flections, I came across a lapel pin representing the fleur de lisé — the Québec flag — which il- lustrates one of the main points I want to stress here: the Québec question is essentially a ques- tion of identity and recognition. It has little or nothing to do with the so-called fiscal imbal- ance or any other specific problem of that kind
GOVERNING THE CANADIAN STATE: THE CONSTITUTION IN AN ERA OF GLOBALIZATION, NEO-LIBERALISM, POPULISM, DECENTRALIZATION AND JUDICIAL ACTIVISM
No full textViewer discretion is advised. I am going to offer you a perspective on the constitution which is stranger even than the Trudeau vision which twenty years ago sparked his epic battles with Merv Leitch and Peter Lougheed over the National Energy Policy, the Charter,1 and repatriation of the Constitution. And worse yet, though I worry about the Constitution, I do not know much about it; I do not often write about it, and as I will demonstrate in a moment, I am not even sure what it is. I did, however, read something recently in a book on modern European history which seemed to capture my own sentiments almost exactly — an observation attributed to a peasant in Salonika, then under Turkish rule, in 1908: “Constitution is such a wonderful thing,” said this peasant, “that he who does not know what it is, is a donkey.”2 I identify with the donkey, not the peasant
RESPECTING DEMOCRATIC ROLES
No full textJe suis très contente d’être ici avec vous ce soir1 et d’avoir été invitée à prononcer l’allocution d’ouverture devant cet important auditoire. Il n’arrive pas souvent que les trois pouvoirs de l’État – le législatif, l’exécutif et le judiciaire – se réunissent afin de discuter de leurs responsabilités et de leurs rapports mutuels. There is a lot of confusion about the roles of these branches, to judge from current press. We hear the criticism that the executive is running the country at the expense of Parliament. We are also told that the courts are running the country, at the expense of Parliament and the executive. So where does the truth lie? Quel rôle appartient à chacune de ces institutions
ABORIGINAL AND TREATY RIGHTS - RECONCILING POWERS AND DUTIES: A COMMENT ON HORSEMAN, SIOUI AND SPARROW
No full textABORIGINAL AND TREATY RIGHTS - RECONCILING POWERS AND DUTIES: A COMMENT ON HORSEMAN, SIOUI AND SPARRO
SOME DRAWBACKS OF THE POLITICS OF CONSTITUTIONAL RIGHTS
No full textSOME DRAWBACKS OF THE POLITICS OF CONSTITUTIONAL RIGHT
A REVIEW OF THE KEEGSTRA CASE: SUPREME COURT UPHOLDS HATE PROPAGANDA LAW
No full textA REVIEW OF THE KEEGSTRA CASE: SUPREME COURT UPHOLDS HATE PROPAGANDA LA
