Search

This paper critically assesses the gap between Canada's criminal law standards of fault articulated in the 1950s and 1970s and its constitutional standards of criminal fault articulated in the 1980s and 1990s. This gap is explained in terms of the Court's ambivalence about subjective fault principles as manifested by its acceptance of criminal negligence. It is also explained by the Court's unique treatment of section 7 of the Canadian Charter of Rights and Freedoms as a right that, unlike any other right in the Charter, is only subject to reasonable limitation under section 1 of the Charter in extraordinary emergency situations. The paper then suggests that the gap between criminal and constitutional fault standards is not sustainable and can only be closed if the Court rethinks its approach to the limitation of section 7 rights. Maintenance of the gap may erode respect for common-law presumptions of subjective fault. If this occurs, Canada's apparently robust approach to the constitutionalization of fault will have actually diminished respect for and protection of subjective fault principles. [ABSTRACT FROM AUTHOR]

This article offers a critical examination of disability rights in Canada in four policy domains: (a) the concept of disability; (b) non-discrimination and equality; (c) accessibility and inclusion; and (d) income support. The Convention on the Rights of Persons with Disabilities and scholarship from disability legal studies and the applied philosophy of disability provide normative benchmarks for the inquiry. The article identifies several shortcomings within political arrangements, policies, laws, and judicial decisions and traces them back to outdated but enduring conceptions of disability – namely, the 'medical model,' the 'charity model,' as well as other impacts of an ableist ideology, such as the normalization and disenfranchisement of persons with disabilities. [ABSTRACT FROM AUTHOR]

The story of Canadian administrative law could be seen as a move toward deference driven by some fundamental decisions of the Supreme Court of Canada. Debates about this move centre on the proper role for reviewing courts as well as the politics lying behind administrative law decisions. Most recently, the 2019 Supreme Court decision in Vavilov raised concerns that it licenses judges to undertake more intrusive review. Key to this story is the assumption that these groundbreaking decisions of the Supreme Court influence how lower court judges decide challenges in the administrative law context. Prior empirical studies have found that the 2008 Supreme Court decision in Dunsmuir increased the use of the reasonableness standard of review as well as the rate at which judges affirm administrative decisions. However, it can be difficult to empirically account for the variety of contexts and decision makers involved. This article uses decisions of the Federal Court to examine whether Dunsmuir and Vavilov changed how judges decide. It finds that, while the use of reasonableness has dramatically increased, the rate at which judges affirm administrative decisions has not changed over time. The article discusses these results and what they imply about the influence of these groundbreaking Supreme Court decisions. [ABSTRACT FROM AUTHOR]

This article will first situate cultural heritage preservation in the urban context through an overview of notions of outstanding universal value, the role of cities in cultural heritage and municipal archaeology generally, paths toward the equitable and sustainable development of cities, and inclusive urban cultural rights in the context of cultural heritage where these appear within international law and guiding international legal frameworks for the protection of cultural heritage. The article will also discuss the notion of the 'public good' as it is applied within heritage preservation decisions and will also address the balancing of public and private interests in built heritage preservation. This article will further turn to the broad legal framework of cultural heritage protection for built spaces in Canada before narrowing in on the common law concept of a heritage easement agreement – notably, how it is and can be deployed in Canada – and the civil law conservation servitude as it is available in the Civil Code of Quebec. [ABSTRACT FROM AUTHOR]

In order for judicial review under the Constitution to be compatible with the rule of law, there must be some tangible constraints on judicial discretion. The author puts forward an account of interpretation under the Charter of Rights and Freedoms that views both the text and purposes underlying it as meaningful constraints on the range of meanings available to interpreters. In particular, the author seeks to demonstrate that purposivism as a method of interpretation can, and frequently has in the Canadian context, operated to narrow the scope of vague and underdeterminate constitutional guarantees. The author criticizes more expansive forms of purposivism, which seek not only to inform the meaning of the words included in the Charter but also to give those purposes said to animate the guarantees independent legal force. This point is illustrated with particular reference to the Supreme Court of Canada's right to vote jurisprudence. The author concludes that these more aggressive approaches to purposivism risk elevating judicially ascertained purposes to the same legal status as the language enacted into law and undermine the defence frequently offered in support of the legitimacy of judicial review under the Charter - that it stems from the deliberate choices of the people. [ABSTRACT FROM AUTHOR]

The global financial meltdown has led to a renewed focus on the purposes of securities regulation and on the expansion of these purposes to include considerations of systemic risk; yet the case for such an expansion has been assumed more than argued. This article derives an argument for expansion from developments in the financial markets. Traditionally, mitigating systemic risk has fallen within the realm of financial institution (i.e., prudential) regulation rather than securities law. However, developments in financial markets, including the bundling and sale of securitized products by a variety of complex institutions, are blurring the line between prudential regulation and securities law. This evolution makes systemic risk increasingly relevant to securities regulation. Consequently, the article argues, the securities regulatory regime should expand to encompass mitigating systemic risk. [ABSTRACT FROM AUTHOR]

The article examines the legal history of Canada. Bora Laskin's book "The British Tradition in Canadian Law" was taken into account. The unsuccessful attempt to write a history of Canadian law during the 1960's was discussed. Theorist Anthony Giddens' word about modernity as institutions and modes of behavior was pointed out. Horace Reed's contribution to history of Canadian law was considered. Information about the professionalization of the discipline during the post-war Canada is further presented.

The Supreme Court of Canada concluded in its 2012 judgment in Doré that the rational connection test and the less restrictive means inquiry from the Oakes analysis are not useful when assessing the justifiability of administrative decisions limiting Charter rights. The Court instead articulated a 'robust' conception of proportionality that requires administrative decision makers to demonstrate only that any rights limitations that their decisions impose are proportionate 'in the strict sense.' This article argues that Charter values should be understood as part of a normative hierarchy of 'justificatory resources' to which administrative decision makers can refer in justifying rights-limiting decisions as proportionate in the strict sense. It argues further that the robust, reasons-first conception of reasonableness that the Court described in Vavilov affirms Doré's logical architecture, marking a shift in Canadian jurisprudence toward a 'culture of justification.' In adopting the same approach to constitutional decisions affecting Charter rights and administrative decisions that do not engage the Charter, Doré and Vavilov construct a unified model of public law in which all public decisions must be shown to be justified by their congruence with a hierarchy of norms which has Charter values at its apex. In this unified model of public law, in which a robust conception of reasonableness is central, it is not clear what room, or need, is left for correctness review. [ABSTRACT FROM AUTHOR]

Examines law practice and business ordering in five 19th century law offices in Montreal, Quebec. Non-use of reified sources of historical knowledge; Use of legal power to influence non-legally-trained entrepreneurs; Refinement of corporate-commercial doctrine; Pervasive roles of lawyers in varied industries.

The future of Canadian labour law will not come by means of a sudden legislative tsunami that sweeps in broad-based sectoral collective bargaining or some other dramatic new system to replace the Wagner model which has governed since the 1940s. Instead, change will come first in the form of smaller foreshocks. Clues as to what those foreshocks may be are found in two important debates that took place during the 1980s. The first debate, led by Paul Weiler, explored comparative labour law and the intersection between the US and Canadian versions of the Wagner model. Weiler's vision of a hybrid Wagner model that drew upon features of both versions to advance worker access to a collective voice at work is instructive of the direction we may be headed in Canada. The second debate related to the potential impact of the Canadian Charter of Rights and Freedoms on the future of Canadian labour law. David Beatty led the argument that the Charter would cause a conversation in Canada that would eventually lead to the dismantling of the Wagner model and its replacement with a new model that emphasized equality of individual liberty and that extended the reach of collective bargaining. In early Charter litigation, the Supreme Court of Canada wholly rejected Beatty's normative vision for a post-Charter labour law. However, in important ways, Charter jurisprudence since 2001 may be catching up to that vision even if the Supreme Court has not often formally adopted his arguments. It is therefore important to revisit his ideas to find clues as to where we may be headed in labour law. The article concludes with some predictions about the changes that will come to Canadian labour law drawn from these debates of some forty years ago. [ABSTRACT FROM AUTHOR]

Drawing on the work of Jean Bodin, this article seeks to re-establish the central place of the official in constitutional thought and thus to constitutionally ground administrative law. It argues that the official not only needs to be responsive to the sovereign but also, being a creature of law, is subject to fundamental legal side constraints and additionally has a critical constitutional duty to remonstrate against unjust law. In this way, the official moderates between the sovereign and the subject and militates against direct rule which leads to tyranny. [ABSTRACT FROM AUTHOR]

In this article, I revisit the arguments in, and address some concerns about, an earlier article of mine, 'The Office of Ownership.' This article makes two main points. The first is about the ways in which a transfer of property from one person to another affects the obligations of third parties. I continue to defend the earlier article's claim that, by thinking about the obligations owed to owners of property as being owed to 'the owner,' rather than to the particular named person who happens to be the owner, we can maintain both the idea that property rights are in rem and the idea that they partake of private law's distinctive bilateral normativity. The second is about the extent to which the notion of an office is helpful in thinking about ownership. There is reason to doubt that it is, notably because owners' powers are typically not bounded in the way that office-holders' powers seem to be. But I argue that, at least some of the time, particularly in contexts where owners are able to exercise powers that bind their successors in title, such as by creating easements, leases, or running covenants, the powers of ownership do seem bounded by their purpose. [ABSTRACT FROM AUTHOR]

'I have nothing to hide' is among the most common and controversial arguments against privacy. This article shows why the argument is mistaken on its own terms. To do so, it constructs a model combining the standard economic argument – that only people with 'something to hide' will value privacy – with a concept of intrinsic privacy preferences and shows that the inclusion of this dimension causes the standard argument to fail. It then applies these insights to two legal contexts in which there are active policy debates: the protection of genetic information in the context of employer-provided health insurance and tax privacy. [ABSTRACT FROM AUTHOR]

This article interrogates reasons for decision, a central concept in Canadian public law scholarship. Using spatiotemporal scale as an analytical tool, it shows how unified reasons may be more easily recognized at the scale of judicially reviewable administrative decisions common to public law scholarship, yet elusive at the scale of front-line decision making. It then investigates how a variety of mechanisms, including data entries and notes, function together behind the front lines of social assistance agencies in the province of Ontario. Drawing on qualitative research into caseworkers' decision-making practices, this article illustrates how the 'reasons' for a particular administrative decision may be multiplied and fractured across software programs, emails, and physical case files. Further, it demonstrates how notes are both more and less than reasons. As they perform three internal communicative tasks central to administrative governance – recording evidence, explaining decisions, and justifying potentially contentious outcomes to other administrative insiders – notes facilitate decision-making practices that ensure institutionally acceptable outcomes are reached, even as one note may not fully capture the logic underlying a particular decision. Ultimately, this article aims to motivate theoretically inclined legal scholars to reconsider the concept of reasons for decision in light of the decision-making practices of front-line administrators. [ABSTRACT FROM AUTHOR]

The constitutional history of Canada and First Nations is often told as the promise fulfilled of Aboriginal rights and treaties. I will challenge this story by recovering the story of the enfranchisement and disenfranchisement of 'Indian' subjects in the first three decades of Canadian Confederation. Far from forgotten actors in a foretold play, 'Indian' voters were crucial to determining the outcome of three closely contested federal elections and challenging settler ideas of the nascent Canadian nation. The question of the 'Indian' franchise was always embedded in competing constitutional visions for Confederation. The Canadian dream of transforming and assimilating Indigenous peoples would give way to a cynical idea of segregation under the permanent regime of the Indian Act. If the 'Indian' franchise was the apotheosis of assimilation, its revocation marked the start of racial segregation. I juxtapose these Canadian constitutional visions with two alternative possibilities. The Anishinaabe-dominated Grand General Council accepted the franchise as part of its vision of reconciling membership in both their treaty-recognized nations and the Canadian state. The Confederacy Council of the Six Nations, in contrast, rejected the franchise as an existential threat to Haudenosaunee self-rule mediated by a treaty relationship with the Canadian and imperial governments. Recovering the constitutional contests driving 'Indian' enfranchisement and disenfranchisement shows us how the successful imposition of a single vision of a white democracy silenced alternative visions of multinational coexistence. It also reminds us of the multiplicity of constitutional possibilities for a common future. [ABSTRACT FROM AUTHOR]

In this article, I argue that the dialogue debate has obscured a much richer story that can be told about Halpern v Canada, same-sex marriage, and the complex relationship between courts and legislatures. The federal government was deeply divided on same-sex marriage. Parliament, the Liberal government, the federal Cabinet, and the liberal caucus were all deeply divided. From the outside, it may have appeared as a 'courts versus government' battle, with the federal government defending the opposite-sex definition of marriage right up until the Ontario Court of Appeal struck it down as unconstitutional in Halpern. But a closer look shows that the federal government's about-face after Halpern had been in the making for years, with supporters trying to use court decisions as well as changing public opinion to wedge open the marriage issue. The same-sex marriage case study can be retold as a story not of dialogue between courts and Parliament but, rather, as a contestation within government. I argue that this story – of conflict and contestation within government and the use of court decisions by proponents of same-sex marriage – can provide a richer account of the evolution of the federal government and the adoption of the Civil Marriage Act. [ABSTRACT FROM AUTHOR]

How long does it take the elected branches of government to study complex policy questions and develop legislation that respects constitutional rights? Judges often suspend for twelve months declarations that a law unjustifiably limits a right protected by the Canadian Charter of Rights and Freedoms. Dialogue theorists praise such suspensions for allowing the legislative and executive branches to act. This article recounts the experiences of the governments of Quebec and of Canada in grappling with assisted suicide en route to legislating. It concludes that tackling a serious policy issue – including research, public education and consultation, and meaningful deliberation – may take much longer than twelve months. Consequent possible changes to judicial practice include granting fewer suspensions and prompting fuller debate in court on the appropriate order. As for dialogue theorists, they might better align their justifications of suspensions with legislative realities. [ABSTRACT FROM AUTHOR]

In 2014, the Supreme Court of Canada rejected the federal government's Senate reform agenda. This article focuses on the Court's response to the government's proposal for consultative (non-binding) elections, which would have had the prime minister consider recommending an electorate's preferred candidate for nomination by the governor general. The Court rejected the government's argument that the proposal was consistent with the legally unenforceable parliamentary conventions of responsible government. The Court characterized the proposal as a break in Canada's 'constitutional architecture.' I ask: how is it that Canada's constitutional architecture has become unconventional? My answer lies in the Court's theorization of what the Constitution is and how it may be amended. I trace a shift in the Court's metaphorical reasoning, from the 1981 Patriation Reference's Constitution as dynamic machine where conventions are its 'operative force' to the 1998 Secession and 2014 Senate Reform References, where a static and aesthetically coherent Constitution as architecture emerges. I argue that, in its architectural understanding, the Court understates the role of conventions in constitutional amendment and finally casts conventions as the saboteurs of a unified constitutional design. [ABSTRACT FROM AUTHOR]

Objections to the disclosure of information under section 38 of the Canada Evidence Act must be adjudicated in the first instance by the Federal Court even when they arise in proceedings before other courts or tribunals. This bifurcated process has come under serious criticism as inefficient and ineffective, especially in relation to criminal proceedings. This article examines the principal concerns that have been raised about the bifurcated process and argues that radical reforms to the current process are not warranted. Rather, with effective coordination between the Federal Court and the underlying proceeding, a bifurcated process in which the Federal Court adjudicates most if not all privilege claims under section 38 of the Canada Evidence Act is the optimal approach and should be preserved. [ABSTRACT FROM AUTHOR]

Legal systems should not always assume the legitimacy of state demands for secrecy and accommodate them with procedural innovations. This is especially so in Canada, which has made problematic policy choices to stress secrecy even in counterterrorism investigations where secret intelligence often has evidential value. A fairer and more efficient transition from secret intelligence to public evidence could be achieved if Canadian criminal trial judges, like those in other democracies, could make and revise non-disclosure or public interest immunity orders to protect secrets. The government of Canada has not justified adopting the procedural innovation of closed material procedures that would allow it to defend itself in national security civil litigation on the basis of secret evidence not seen by plaintiffs claiming to have been abused, but only by special advocates. There is a danger that even justified procedural innovation such as the use of special advocates will create new baselines that can be used to support additional innovations that may undermine the legitimacy of the legal system and discount the value of procedural regularity. [ABSTRACT FROM AUTHOR]

It has been uncontroversial in Canada since the Supreme Court of Canada’s decision in Haida Nation v British Columbia (Minister of Forests) that the Crown bears a constitutional duty to consult Indigenous peoples before proceeding with any conduct that threatens potential or unproven Indigenous rights or title. This duty is rooted in the honour of the Crown and is important to the broader goal of reconciliation between Indigenous and non-Indigenous Canadians. But section 35 of the Constitution Act, 1982 mentions neither the honour of the Crown nor the duty to consult. The conceptual foundations of the duty are unclear and remain undertheorized, leaving courts, Indigenous peoples, the Crown, and private industry to wonder precisely what consultation should involve. This article attempts to fill this theoretical gap. First, it argues, as an analytical matter, that the duty to consult is most coherently understood to flow from a commitment to creating space within the existing structures of Canadian democracy for the exercise of political sovereignty by Indigenous peoples. Second, the article makes the normative argument that this is the correct way to understand the duty. Canada’s historical failure since contact to recognize Indigenous sovereignty in any politically meaningful way has perpetuated a sovereignty deficit in Canada. Reconciliation, in turn, requires erasing this sovereignty deficit. Crown consultation with Indigenous peoples is one way to restore some degree of political sovereignty to Indigenous peoples, by holding the Crown more directly accountable to Indigenous communities. If these procedural protections for unproven Indigenous rights and title are to promote reconciliation, it must be shaped and informed by the extent to which consultation increases Crown accountability to Indigenous peoples and allows Indigenous peoples to act as sovereign, politically autonomous nations. This proceduralized understanding of section 35, however, should not be allowed to undermine the substantive protections that section 35 entrenches for existing Indigenous rights and title. [ABSTRACT FROM AUTHOR]

This article sets out a sociological critique of the theories of legal pluralism that underpin contemporary constructions of Indigenous rights. It argues that pluralistic theories of Indigenous rights, which see Indigenous rights as challenging the legal orders of nation-states, are based in simplified analyses of the construction of such rights, and they fail to account for the subjects that lay claim to indigeneity and the relation between such subjects and national legal systems. To explain this, the article reconstructs primary patterns of Indigenous rights law in global international law, regional international law, and municipal law in Latin America and Africa. Against standard pluralistic approaches, this article argues that we need to adopt a sociological model based in world citizenship, which depends on relatively autonomous legal functions, to understand the growth of Indigenous rights. Central to this model is the claim that the imputation of Indigenous rights extends the reach of domestic legal systems and that it is closely linked to a process in which the national legal system, supported by global legal norms, penetrates more deeply and more inclusively into national society. [ABSTRACT FROM AUTHOR]

This article explores the intense fight over land between the Métis Nation and the Treaty One peoples (interveners) as it played out in the landmark Manitoba Métis Federation v Canada and Manitoba hearing at the Supreme Court of Canada. The article argues that this battle demonstrates the way zero-sum understandings of land, as well as racialized derivative title logics, animate the Treaty One peoples’ court strategy. By examining the contexts and complexities of these logics, the author shows that Treaty One peoples’ arguments undermine their own interests while also serving to undermine the formation of a coordinated Métis/Treaty One court strategy. The work uses Vine Deloria Jr’s interventions on time and the choices that make future worlds to argue that Métis and Treaty One peoples are not well served by narrowly self-interested litigation strategies. The piece concludes that shifting to a coordinated strategy would help avoid the weaknesses of Treaty One’s position while also better addressing the shared struggles of Métis and Treaty One peoples. [ABSTRACT FROM AUTHOR]

This article discusses the three regulatory measures that Canadian provinces have used to implement the Canada Health Act criteria of universality, accessibility, and comprehensiveness. These three measures – the prohibition of duplicative private insurance, the prohibition of mixed private–public practice, and the capping of private physician fees to the levels of public fee schedules – are designed, above all, to regulate the health-care insurance and delivery industries. The article highlights the dangers of superficial analysis by the courts that is limited to canvassing potential violations of some patients’ individual rights, without taking into account the intricacies of health-care industry regulations and their effects on the public system as a whole. Without the vigilance of the courts, the Canadian Charter of Rights and Freedoms can certainly become the industry’s best ally in forcing a radical realignment of public policy in health-care systems across the country, without democratic debate. [ABSTRACT FROM AUTHOR]

Anglo-American lawmakers are in the midst of introducing a series of antidiscrimination protections for trans people. By and large, they are making this change by adding the terms 'gender identity' and 'gender expression' to a variety of human rights law instruments. In June 2017, for example, the Parliament of Canada passed Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code. The legislation adds the terms 'gender identity or expression' to the Canadian Human Rights Act, along with the hate crimes provisions of the Criminal Code. Similar pieces of legislation have been introduced in the United States and the United Kingdom. While legal scholarship has spent considerable time debating the merits of such legislation, comparatively less attention has been paid to the plural, and often contradictory, history of 'gender identity' and 'gender expression.' This article traces the origins of these terms, arguing that 'gender identity' is the product of mid-century psychiatric discourses that constructed trans people as a narrow class of persons. 'Gender expression' is a comparatively newer concept, emerging in the 1990s in concert with performative theories of gender that sought to demonstrate how disciplinary norms are imposed on all members of society. The contemporary reliance on these terms reflects what Eve Kosofsky Sedgwick has called the tension between 'minoritizing' and 'universalizing' accounts of gender and sexuality. The article is organized in four parts. Part I traces the origins of the term 'gender identity,' along with how it migrated from clinical contexts to legal forums. In 1994, the City of San Francisco became the first Anglo-American jurisdiction to entrench the term in a human rights instrument. Part II tracks the comparatively shorter history of the term 'gender expression.' The Part then traces the term's reception into human rights discourse, with New York City becoming the first Anglo-American jurisdiction to use the term 'gender expression' in 2000. Part III examines how two terms emerging out of different historical moments and with different sets of normative preoccupations have recently fused together to capture how individuals internally identify their gender and externally perform it. The article concludes by anticipating future implications for the corpus of trans humanrights law, which will inevitably continue to grapple with the tension between minoritizing and universalizing approaches. [ABSTRACT FROM AUTHOR]

Bill C-16, An Act to Amend the Canadian Human Rights Code and the Criminal Code was a government bill intended to provide equal protection of the law to trans and gender non-binary Canadians. It protects individuals from discrimination within the sphere of federal jurisdiction, as well as protecting against hate propaganda and hate crimes, on the basis of gender identity and gender expression. The opposition to previous legislative attempts to protect trans rights focused on questions of sex-segregated spaces such as public bathrooms. In the course of the debate over Bill C-16, however, a new discourse of opposition emerged: Bill C-16 was said to be a fundamental threat to freedom of expression. This article argues that this claim lacks validity, yet it gained remarkable traction. The article traces the shifting opposition discourse and argues that freedom of expression provided a new and legitimizing discourse for long-standing conservative opposition to trans rights. Finally, it seeks to explain the traction of the specious legal claims, contextualizing them within existing public discourses of political correctness and freedom of expression under attack. [ABSTRACT FROM AUTHOR]

In Bhasin v Hrynew, the Supreme Court of Canada recognized good faith in contractual performance to be a 'general organizing principle' of the common law of contract. The true impact of Bhasin on the future development of Canadian contract law remains the subject of considerable debate among legal scholars and practitioners. This article explores Bhasin's evolutionary impact on the Canadian common law of contract, by providing an institutional understanding of the general organizing principle of good faith in contractual performance. It is contended that Bhasin's contribution to the common law of contract is institutional rather than substantive - Bhasin fundamentally alters the organization of the sources of contract law by introducing a new law-making mechanism (that is, 'law-making through good faith') that is separate from, and potentially supersedes, the traditional doctrine of precedent. To support the central claim that Bhasin's contribution is institutional rather than substantive, I employ three different kinds of arguments that correspond to three distinct, but closely related, dimensions of the principle of good faith in contractual performance: (a) semantic structure; (b) historical origins; and (c) economic function. Although these three lines of inquiry rest on quite different methodological premises, they converge in supporting the central idea that good faith performance is best understood as an institutional mechanism to allocate lawmaking power rather than a substantive legal principle. [ABSTRACT FROM AUTHOR]

In this empirical study, the author assesses an argument advanced by several scholars that the framework for the selection of standards of review articulated by the Supreme Court of Canada in Dunsmuir v New Brunswick leads to less deference being shown by judges to administrative decision makers than the prior pragmatic and functional approach. An examination of the Court's voting record in 177 cases dating back to Pushpanathan v Canada suggests that, to the contrary, members of the Court have shown greater deference to administrative decision makers in the years since Dunsmuir was decided than they did under the prior framework. For example, the rate at which the correctness standard was selected after a standard of review analysis was undertaken decreased from 43 per cent before Dunsmuir to 17 per cent in subsequent years. The rate at which members of the Court voted to overturn administrative decisions after identifying the applicable standard decreased from 38 per cent before Dunsmuir to 23 per cent thereafter. While a multiple regression analysis to control for confounding factors was not undertaken, these changes appear to flow from a change in the Court's approach rather than from factors such as changes in the composition in the Court or changes in the kinds of cases that were heard after Dunsmuir. The author suggests, however, that this shift in approach is not necessarily inherent to the Dunsmuir framework itself and that there are signs that the Court may have already begun to adopt a somewhat less deferential posture. [ABSTRACT FROM AUTHOR]

The article examines how courts apply bills of rights to administrative decisions. It adopts a comparative perspective, analysing the law in the United Kingdom, Canada, and New Zealand. It is found that the courts in each jurisdiction have taken a different approach in relation to the two central issues - namely, (1) whether courts decide for themselves whether rights have been violated or whether they adopt a secondary reviewing role; and (2) whether bills of rights are used as a means of imposing enhanced requirements on decision makers in terms of how they reach their decisions, beyond common law requirements of relevancy and proper purposes. The article argues that the preferred approach is for courts to decide for themselves whether protected rights have been infringed and for them to protect such rights indirectly through the development of requirements applicable to the process of decision making, targeted at ensuring that administrators reach rights-compliant decisions in the first instance. Procedural requirements, if appropriately nuanced and context specific, need not lead to formalism in decision making. The article develops this model, described as the 'shared responsibility model,' and contrasts it with the approach taken by the courts in both Canada and the United Kingdom. [ABSTRACT FROM AUTHOR]

Requiring a government to pay compensation when it takes property is a common means of protecting property rights. In this article, I explore the implications of this right to property having a constitutional form, rather than a statutory or common law form, by examining the comparative law of compensation for takings in Canada and the United States. The analysis is focused on the various functional interests in efficiency and fairness that underlie the protection of property rights and their often competing requirements for rigidity and flexibility. Rather than providing a binding constraint that enhances efficiency, the choice of a constitutional form appears most consistent with the prioritization of distributive concerns around government's power over property rights. However, the substantive protection of property rights appears to be driven as much by the underlying interests as by the choice of legal form. Variation in the practical content of property rights in Canada and the United States is much more subtle than the difference in constitutional status suggests. [ABSTRACT FROM AUTHOR]

The aims of victim impact statements (VIS) can be classified into two main categories - instrumental and expressive. These different sorts of aims are associated with different, and often conflicting, sentencing objectives. This article argues that the VIS regime in Canada remains a legal no man's land, with neither its role nor its aims being clearly defined and articulated. Indeed, recent appellate court decisions have shown a number of inconsistencies and conflicts in the instrumental and expressive purposes that VISs in Canada are meant to serve. Further, it is also argued, the proposed legislative amendments under Bill C-32 are not very promising, since this scheme also fails to clearly articulate the aims and rationales behind the statements and behind the proposed changes. It is shown, throughout the article, that VIS regime guidelines and parameters can take different shapes and forms, depending on the aims retained. Moreover, while a dualist scheme that reconciles instrumental and expressive aims may be possible, clarity would be necessary in order to craft adequate parameters. Certainly, more protective measures are necessary if instrumental aims are to be retained. Finally, having laid out the conceptual and foundational grounds required to understand the possible aims of VISs and how these different aims can shape the relevant parameters, the article proceeds by laying out an initial, more normative, proposal for a VIS multi-functional model inspired by evidence-based findings. [ABSTRACT FROM AUTHOR]

Republicanism has emerged as an important school of thought in political theory and has exerted a strong influence on Anglo-American legal scholarship. Republicanism has, however, been largely absent from Canadian constitutional law scholarship and this absence is particularly noticeable in the legal literature on federalism. In this article, I intend to show that a particular version of republicanism, which stresses the norm of non-domination, provides a promising normative framework for analysing the multinational elements of Canadian federalism. The argument seeks to achieve two main goals. First, it aims to build on Philip Pettit's suggestive analyses of minority rights and federalism in order to arrive at a robust republican conception of multinational federations. Second, the argument aims to demonstrate that republican theory can benefit from a close contextual analysis of a particular set of political institutions and that Pettit's version of republicanism is amenable to this kind of attention to context. [ABSTRACT FROM AUTHOR]

This article draws on debates about the 'boundary problem' in democratic theory to consider the normative challenges raised by descent-based Aboriginal membership rules in Canada. The boundary paradox is one of the most intractable puzzles of democratic theory. If a demos is necessarily bounded, so that some people are excluded, what normative principle could justify these exclusions? Liberal theory tends to insist on the primacy of consent as the basis of political society and so fails to explain the reliance of liberal democracies on birthright membership, especially the distribution of citizenship to foreign-born descendants of citizens. Applied to expressly kinship-based polities like Aboriginal communities, liberal approaches prioritize non-discrimination, potentially denying to those communities the capacity to distribute membership by reference to characteristics listed as 'prohibited grounds' in human rights law, including, most problematically, race and ethnicity. The article outlines the parallels between Canadian citizenship law, the Indian Act regime, and First Nations' membership codes, and examines the distinctive role to be played by section 35 of Canada's Constitution Act 1982 in tempering non-discrimination logics. It concludes that existing justificatory tests (the 'valid legislative object' test, and the section 1 'reasonable limits' test) are unlikely to provide a way forward, but that a promising methodology can be discerned in Canadian law and policy, in which the 'reasonableness' of Aboriginal descent-based exclusions is assessed relative to the characteristics of a free and democratic Aboriginal community. I suggest that this adaptation of liberal non-discrimination norms is an expression of the continuing importance of kinship and descent boundaries in settler-state constitutionalism. Although many questions remain to be resolved, Canadian human rights laws and methodologies could assist in the primary challenge posed to settler-state political theory: the reconciliation of tribal and liberal forms of political organization. [ABSTRACT FROM AUTHOR]

Since the entrenchment of the Canadian Charter of Rights and Freedoms, there has been a tendency to view the judiciary as being the primary institution responsible for securing and advancing constitutional rights and values. Less attention has been paid to what role government might have in this regard. In this article I explore the government's role in what scholars sometimes refer to as 'constitutional implementation' and offer a theory of Canadian constitutionalism that better reflects this role. Following Alexy, I suggest that, guided by the 'framework' established by the Charter, government can be understood to play a central role in securing and advancing constitutional rights and values. If the Charter imposes explicit limits on state power as well as certain affirmative obligations, then the government's role in constitutional implementation is much greater than is generally acknowledged. Once this role is better understood, certain deficiencies in the conventional account of Canadian constitutionalism become clear, particularly insofar as this account conceptualizes the Charter as comprising a series of limits on government power and imagines government as a potential rights-infringer to be reined in by the courts. [ABSTRACT FROM AUTHOR]

This article is the text of an introductory address presented at the Faculty of Law on 23 October 2009 in celebration of Professor Ernest Weinrib's receiving the 2009 Killam Prize, Canada's most distinguished annual award for outstanding scholarly achievement. It offers a very personal interpretation of the contributions that Weinrib has made to private-law scholarship over the last thirty years and is organized around three closely related questions that he has addressed in his work: What is a theory? What is a theory of law? and What is a theory of private law? His answers to these different questions land Weinrib in three different worlds - the world of the university, the world of the law school, and the world of legal practice - but it is Weinrib's special contribution as a legal philosopher to have brought all three much closer together. [ABSTRACT FROM AUTHOR]

The article focuses on terrorism financing and regulation of charities in the Air India Report. It states that the Canadian commission of inquiry into the bombing Air India Flight 182 did not have recommendations on the prevention of terrorism financing and financing from charities. It emphasizes that Canada responded to the September 11 terrorist attacks by changing laws on terrorism financing, which includes criminalizing terrorism financing and the Charities Registration Act.

This article explores Michael Trebilcock's claim that the federal government's present restrictions on direct-to-consumer advertising (dtca) of prescription drugs should not withstand a Charter challenge and his argument that a less intrusive, more nuanced regulatory regime could be implemented. The author explores the government's challenges in mounting a s. 1 defence, analysing the role and limitations of social-science evidence and recognizing that both inherent methodological difficulties and the manner in which health services researchers frame their approach to policy questions are such that there may never be sufficiently robust evidence of competing policy alternatives for the government to use in a s. 1 challenge. The article then goes on to review the appropriate evidentiary hurdles the government should be required to satisfy to justify this kind of policy in the face of a constitutional challenge and raises the question of the courts’ competence to assess the policy ramifications of choosing to take a more stringent approach to review. The policy approaches to dtca in other countries are explored to demonstrate that although alternative regulatory regimes exist in theory, the reality is that they are not enforced, and as such are not real alternatives to the current regime. The author explores what evidence is available regarding the advantages and disadvantages of dtca and concludes that the latter outweigh the former, that the prospect of more nuanced regulations are theoretical only, and that Canada should maintain its present regulatory restrictions. [ABSTRACT FROM AUTHOR]

Michael Trebilcock's scholarship has long recognized the importance of ideas, interests, and institutions in shaping policy. Taking the same analytical approach that Michael Trebilcock and Ninette Kelley use in their ground-breaking book on the history of Canadian immigration, which focuses on economic interests, contested ideas, and institutions, this article examines the Canadian historical experience to gain an understanding of the ideas, interests, and institutions that have been influential in shaping the evolution of Canadian bankruptcy law. Specifically, the article addresses the rise of Canadian bankruptcy legislation in the early post-Confederation period and its ultimate repeal in 1880. Bankruptcy law represented both a conflict of ideas over the morality of the bankruptcy discharge and a distinct divergence of interests between local and distant creditors over the advantages and disadvantages of a pro rata distribution. Institutional factors such as federalism, courts, and the emerging regulatory state also had an independent effect. [ABSTRACT FROM AUTHOR]

Game theoretical analysis can be useful in contexts such as securities regulation, where multiple decision makers (i.e., securities regulatory authorities or commissions) act unilaterally but can also potentially reap benefits from cooperation. We deploy several models in seeking to render more transparent the strategies and pay-offs that motivate jurisdictions to support or resist the introduction of a national securities regulator in Canada. Our analysis suggests that consensus has not been reached regarding a national regulator not only because of a lack of cooperation but also because of a lack of coordination. Indeed, it seems plausible both that provinces recognize the benefit of adopting a common standardized regulatory model and that the source of disagreement surrounds the precise regulatory content of that common standardized model. This essay explores the implications of this insight. [ABSTRACT FROM AUTHOR]

The idea of the National Policy as both a collective endeavour and a framework for detailed policy analysis is more constitutive of the Canadian state and its governing instruments than is any of its renamed Constitution Acts. National policies originate in the actions and demands of citizens and are often framed by cultural and economic elites before being appropriated by politicians. This essay begins with a descriptive genealogy of Canada's three National Policies ( [ABSTRACT FROM AUTHOR]

While there are many facets to Canada's perennial constitutional crisis, one issue dominates the debate: the recognition of the specificity of Quebec. The problem has been tackled but not resolved during a series of constitutional negotiations over the last forty years. Few believe that a further round of general constitutional discussions would successfully address this issue. A little-known provision in the Constitution could be employed, however, to begin the process of dealing with the challenge. Pursuant to section 43 of the Constitution Act, 1982, the governments of Quebec and Canada could adopt a bilateral constitutional amendment recognizing and entrenching French as the predominant language of the province and, in the process, effectively recognizing the Québécois nation in the Constitution of Canada. Constitutionalizing this contemporary reality would not only enhance the linguistic and cultural security of Quebec's francophone population by formally acknowledging the central element of the province's distinctive character but also ensure that the courts interpret the Constitution in a manner that both considers the interests of the francophone community and balances them with individual rights and freedoms in Quebec. [ABSTRACT FROM AUTHOR]

We speak often of ‘representative democracy’ and we tend to regard it as the dominant form of government in the modern West. But who or what is represented by the electoral systems of the modern democratic state? Although we may be tempted to regard contemporary democracies as embodying essentially the same underlying conceptions of representation, a careful examination of constitutional texts, legislative frameworks, and judicial interpretations reveals important differences from one country to the next. In particular, the problem of electoral apportionment has produced a line of constitutional cases in the United States, Canada, and Australia that raise very similar sets of issues, but with strikingly different results. This article compares the case law in the United States, Canada, and Australia on the question of electoral apportionment. While the ideas appealed to in each country are complex and contain sometimes overlapping elements, it is argued that they can be classified into three general types, which the article calls ‘individualist,’ ‘communitarian,’ and ‘federalist.’ Each approach presupposes a distinct conception of the political identity of the human person and has distinct implications for design of a democratic electoral system. And, while each conception finds a place in each of the three countries under examination, there is an important sense in which individualist conceptions have dominated much of the American jurisprudence, communal approaches have influenced most of the Canadian case law, and federalist conceptions have shaped the Australian cases at several decisive points. The article concludes by arguing that, although factors such as modalities of interpretation and conceptions of the relationship between the courts and the political branches of government have been important, significantly different underlying conceptions of democracy and of the political identity of the human person have been ultimately determinative of the results. [ABSTRACT FROM AUTHOR]

The article examines the contribution of Canadian Supreme Court Justice Frank Iacobucci in the development of the modern test for the standard review in administrative law. An academic and judicial critique regarding the Supreme Court's standard-of-review jurisprudence. Key information about the use of procedural fairness as model for review is further presented.

The article examines the contributions of Supreme Court Justice Frank Iacobucci in the Canadian tax jurisprudence. The traditional Anglo-Canadian and American judicial approaches to tax statutes was taken into account. Key information about significant tax decisions made by Iacobucci is presented. On the other hand, his judicial restraint and legislative supremacy was also evaluated.

The article examines the salutary contributions made by Canadian Supreme Court Justice Frank Iacobbuci in the development of common law concerning the admission and exclusion of evidence. The principled approached to hearsay evidence is taken into account. Key information about the use of cross-examination to test the reliability of the declarant's assertion is also provided.

The article examines the role of Supreme Court Justice Frank Iacobucci as a constitutional judge. According to the author, Iacobucci calls upon his complex self to resolve difficult rights claims in the course of his decision making. Iacobucci's opinion on rights of gays and lesbians was also taken into account. Key information about the administrative law case of Trinity Western University in Langley, British Columbia is further presented.

The article examines the contribution and of Supreme Court Justice Frank Iacobbuci in the development of the labor law of Canada. Common and statutory law of dismissal, the law of collective bargaining and freedom of association under the Charter of Rights and Freedom were among the labor law headings discussed. Key information about the nature of labor law and Iacobbuci's role in the articulation of its basic theory is also presented.

The article examines the intention, consent and insurance factors regarding the allocation of the risk of subjectivity in the Supreme Court case of Canada. The Supreme Court case Non-Marine Underwriter, Lloyd's of London v. Scalera was taken into account. Two sorts of reasons were discussed regarding the non-existence of liability insurance for intentional wrongs.

The article focuses on the career of Frank Iacobucci as a Supreme Court Justice of Canada. Database and codings were used to examine the institutional features of the Supreme Court and voting record of each justice. Key information about methods used in voting Iacobucci as well as his interaction with other justices is further presented.

The article focuses on the contributions of Canadian Supreme Court Justice Frank Iacobucci in the development of the constitutional jurisprudence of Canada. His central role at the Quebec Veto Reference, Meech Lake Accord and Quebec Secession Reference were examined. In the Meech Lake Accord, he acknowledged that the "distinct society" clause could have been located in the preamble and still have a tangible legal impact.