Constitutional Forum (Journal)
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LE DIPTYQUE CÔTÉ-ADAMS OU LA PRÉSÉANCE DE L’ORDRE ÉTABLI DANS LE DROIT POST-COLONIAL DES PEUPLES AUTOCHTONES
No full textLE DIPTYQUE CÔTÉ-ADAMS OU LA PRÉSÉANCE DE L’ORDRE ÉTABLI DANS LE DROIT POST-COLONIAL DES PEUPLES AUTOCHTONE
CANADA’S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS AND DISADVANTAGED MEMBERS OF SOCIETY: FINALLY INTO THE SPOTLIGHT?
No full textCANADA’S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS AND DISADVANTAGED MEMBERS OF SOCIETY: FINALLY INTO THE SPOTLIGHT
Fédéralisme Canadien et Lutte Contre Les Changements Climatiques
No full textLa centralisation apparaît aux yeux de plusieurs comme une solution évidente dans le dossier des changements climatiques. Néanmoins, de nombreux éléments indiquent qu’un fédéralisme authentique pourrait plutôt représenter un atout pour répondre aux défis que posent les changements climatiques. Un survol de la relation entre les notions d’environnement et de fédéralisme dans l’histoire politique et constitutionnelle canadienne démontre pourquoi il serait mal avisé d’imposer à l’ensemble de la fédération une seule politique au détriment de toutes les autres possibles. Il est important, face aux enjeux environnementaux qui se feront de plus en plus pressants, que le gouvernement fédéral et ses partisans arrivent à mettre de côté leurs réflexes centralisateurs pour plutôt encourager les provinces à poursuivre leurs expérimentations. En même temps, Ottawa devrait également, dans ses propres domaines de compétence, assumer pleinement ses responsabilités environnementales pour le plus grand bénéfice du fédéralisme et de l’environnement
SUPREME COURT SCEPTICAL ABOUT PRESUMPTION OF CROWN IMMUNITY
No full textSUPREME COURT SCEPTICAL ABOUT PRESUMPTION OF CROWN IMMUNIT
The Governor General’s Decision to Prorogue Parliament: A Chronology & Assessment
No full textWe are fortunate that real crises are few and far between in Canadian politics. We have a fundamentally stable system of government, and most political leaders both understand and play by the rules most of the time. As a result, it is something of a shock when a real crisis erupts and fundamental differences unfold over basic constitutional rules. Canada’s parliamentary system has been under increasing strain for several years, but matters came to a head in late 2008. While Governor General Michaëlle Jean’s controversial decision to grant Prime Minister Stephen Harper’s request to prorogue Parlia- ment was the high point of this crisis, there is so much more about this episode that needs to be understood. And it is crucial for us to really understand this affair because the ramifications of the 2008 crisis are profound and enduring. One reason the events erupted so quickly into a crisis is that they dealt with the unwritten rules of the constitution, which are seldom discussed in depth even at the best of times and, as a re- sult, are subject to misinterpretation and mis- representation in times of conflict. The tension was compounded by the unprecedented nature of much of what transpired. Without clear and easy parallels to similar crises in the past, the public and their advisors in the media were left confused as to what was or was not the proper course of action. Nevertheless, there were clear constitutional principles at play that would have been able to give better direction to the Gover- nor General and the Prime Minister if they had been heeded
A Level Playing Field for Classical Liberalism: the Abolition of the Court Challenges Program Empowers a Diversity of Perspectives on Freedom and Equality
No full textIn 1982, Canada abandoned its parliamen- tary democracy for an American model of con- stitutional democracy in which unelected, and hence unaccountable, judges exercise substan- tial legislative power. Before the Canadian Char- ter of Rights and Freedoms1 became the supreme law of the land, Canada’s Parliament and pro- vincial legislatures were essentially sovereign, limited only by the federal-provincial division of powers in sections 91 and 92 of the Constitu- tion Act, 1867.2 Activism and advocacy in the democratic political arena were the only ways to bring about policy change. But since 1982, Canadian judges — like their United States (U.S.) counterparts — play a very active role in shaping public policy on a wide range of issues, many of them complex and controversial
Re-Framing the Sharia Arbitration Debate
No full textThe “matter of religious arbitration in . . . Ontario” to which Margaret Atwood and nine others are referring is a vocal, polarized debate – the “[S]haria debate.”2 It has largely been framed by two questions. Should Ontario “[p]rohibit the use of religion in the arbitration of family law disputes”3 to avoid “the ghettoization of members of religious communities as well as human-rights abuses?”4 Or would such a prohibition do a “great disservice to a number of religious groups in Ontario, and nothing to safeguard the interests of Muslim women?”5 Several fundamental rights and interests are engaged by this debate, including religious freedom, gender equality, the rights of children, national and cultural identity, freedom from hatred, the role of the state in family law, and others
BEYOND THE FLIGHT FROM CONSTITUTIONAL LEGALISM: RETHINKING THE POLITICS OF SOCIAL POLICY POST-CHARLOTTETOWN
No full textA decade after the demise of the Charlottetown Accord in 1992,1 one of the most visible features of federal-provincial relations is the replacement of constitutional with non-constitutional policy instruments to secure many of the same ends — what I term the “flight from constitutional legalism.” Instead of constitutional amendments, the instrument of choice is the non-legal, intergovernmental accord. The leading examples are the Social Union Framework Agreement2 and the Agreement on Internal Trade,3 which in differing levels of detail set out both a normative framework and an institutional architecture to manage the Social Union and the Economic Union, respectively
RELUCTANT WARRIOR, ENTHUSIASTIC PEACEKEEPER: DOMESTIC LEGAL REGULATION OF CANADIAN PARTICIPATION IN ARMED CONFLICTS*
No full textWar is, by necessity, a savage and grisly business and the decision to participate in armed conflict is one of the most onerous any govern- ment can make. This paper examines the domestic norms and institutionalized procedures that constrain or guide the office of prime minister of Canada in deciding when and how to put Canada in a state of war or armed conflict. This question assumes greater importance and subtlety because in contemporary times, formal declarations of war, which in past would have followed intense parliamentary debates, now seem anachronistic. In modern times, states engage in armed conflicts, whether aggressive1 or defensive, without adopting the technical procedure of formally “declaring” war on perceived enemy-states. Indeed, so ubiquitous and recurrent is this phenomenon of “undeclared warfare” that some scholars have suggested that the technical concept of war (declaration of war) has been effectively replaced by the “factual concept of armed conflict.”2 An obvious implication of this trend is that Canadians may not realize that their troops may be engaged in armed conflicts somewhere without as much as a prior parliamentary debate on the necessity of otherwise of participating in an armed conflict
WAR AND PEACE- AN ISRAELI PERSPECTIVE
No full textThe State of Israel was born in the storm of war and has been in a state of military confrontation ever since, which continues even as these lines are being written. Israel has fought six full-scale wars since its establishment: the War of Independence (1948), the Sinai War (1956), the Six Day War (1967), the War of Attrition (1970s), the Yom Kippur – or October – War (1973), and the Lebanon War (1982). Furthermore, the periods between the wars were not without military unrest. Israel has found itself in unabated military confrontations, most recently capped by the uprising (known in Arabic as the Intifada) being waged against it by the Palestinian Authority since September 2000