Articles

The Charter at 30: A Reflection 
John D. Whyte

Abstract - N/A

Les principes constitutionnels non écrits
Luc B. Tremblay

Abstract

In a series of controversial decisions in the last thirty years, including the Reference re Secession of Quebec rendered in 1998, the Supreme Court of Canada has given full legal force to unwritten constitutional principles. These principles, which bind both courts and governments, may not only guide the interpretation of the constitutional text but constitute the premises of constitutional arguments that culminate in “the filling of gaps in the express terms of the constitutional text” and in certain circumstances, “give rise to substantive legal obligations … which constitute substantive limitations upon government action.” Conferring such a normative force to unwritten constitutional principles raises a series of theoretical, epistemological and normative questions. What is the status of these principles? What is their source or foundation? How may they be determined? What is the foundation of their legitimacy? What right does the judiciary have to use them to create substantive legal obligations? The purpose of the text is to consider these questions.

The Protective Function and Section 7 of the Canadian Charter of Rights and Freedoms
Vanessa A. MacDonnell

Abstract

It is an increasingly common feature of modern constitutional instruments for the state’s “protective function” to be explicitly affirmed in the constitutional text. Thus, in addition to prescribing individual rights that may not be infringed by state actors—the conventional negative rights guarantees—the constitutions of Germany, South Africa and the European Union also instruct the state to secure individuals against deprivations of their constitutional interests by non-state actors. This paper considers whether, despite the absence of a clear textual basis for the protective function in the Canadian Charter of Rights and Freedoms, the state’s obligations under the Charter might nonetheless include a similar duty to secure individuals against deprivations of their constitutional interests by non-state actors. I explore this question using Section 7 of the Charter as a case study, and conclude that there are compelling reasons for recognizing a constitutional basis for this essential task of the state.

The 23rd Annual McDonald Lecture in Constitutional Studies Dignity in Administrative Law: Judicial Deference in a Culture of Justification
David Dyzenhaus

Abstract

In this article, I argue that the right to dignity is more at home in administrative law than anywhere else. This argument goes against the grain of much constitutional scholarship and jurisprudence, where there is increasing interest in dignity as the foundational value, and of recent work in political philosophy that invokes dignity as the right of rights—the right that grounds all others. I defend the view that we should resist the temptation to make dignity the right of rights. Rather, we should see it as the way of understanding our relationship as rights-bearing individuals with the state. Put differently, the right to dignity is nothing more than the principle that individuals must be treated as equal before the law. Understood as such, dignity has a venerable presence in theories of constitutionalism. Dignity is not merely a synonym for equality, but also a useful, perhaps even an essential, way of making precise the right to equality before the law that is intrinsic to government according to law. My defence takes place in two contexts: the “wicked” legal system of apartheid South Africa and the “decent” legal system of contemporary Canada. These two contexts show in different ways why there is a core of equality—the specifically legal status of equal dignity—to the public law order of any law-governed state.

Book Reviews

Review of The Politics of Judicial Independence, Bruce Peabody
Adam M. Dodek

Review of Tribal Constitutionalism: States, Tribes, and the Governance of Membership, Kristy Grover
Pamela D. Palmater

Special Issue

Full Issue

Introduction

Redrawing Security, Politics, Law And Rights: Reflections On The Post 9/11 Decade
Alexandra Dobrowolsky and Marc Doucet, Guest Editors

Articles

The Post-9/11 Nation Security Regime in Canada: Strengthening Security, Diminishing Accountability
Reg Whitaker

Abstract

The post-9/11 national security regime in Canada has been characterised by the addition of resources, new powers, administrative rationalization and general strengthening of security against possible terrorist attacks. This improvement of capacity has had the unanticipated consequence of diminishing the scope of accountability for national security, as accountability mechanisms designed for the Cold War and pre-9/11 era have not been modernized to keep pace. Issues have arisen that have demonstrated the shortcomings of existing accountability structures to cope with post-9/11 realities. The Arar, “Syrian Three,” Omar Khadr, Abdelrazik, security certificate, and Afghan detainee cases are all examined from the point of view of failing accountability. The Arar and Air India inquiries have made serious recommendations for reform that have so far been ignored by the government. The Canadian experience is found to be broadly similar to that of its closest allies, the USA and UK. Some explanation is sought in an examination of the institutional and political constraints imposed upon governments, and the tension between the long term need for greater accountability and the short term pressures to avoid greater transparency in the operations of the “secret state.”

Failing to Walk the Rights Talk? Post-9/11 Security Policy and the Supreme Court of Canada
Emmett Macfarlane

Abstract

This article explores the Supreme Court of Canada’s record in dealing with a range of security policies implicating the Charter of Rights in the post-9/11 era, including deportation to torture, the use of security certificates and investigative hearings, and the Canadian government’s obligations to Omar Khadr, the sole Canadian citizen held at Guantanamo Bay, Cuba. The article demonstrates that the decisions are marked by a mix of judicial deference and judicial minimalism, each of which has important policy implications. The article concludes that the Court’s record in balancing Charter rights with security objectives is mixed. The Court has, for the most part, adopted a posture of restraint that safeguards rights in a prudent manner. In certain instances, however, the Court’s reasoning fails to live up to its rhetoric in support of rights. When the justices adopt a minimalist posture, rights failures may result from making compromises that weaken the Charter’s scope. When the justices adopt a deferential posture, rights failures may result from justifications for deference that make little institutional sense. These considerations have important implications for the protection of Charter rights.

Insecure Refugees: The Narrowing of Asylum-Seeker Rights to Freedom of Movement and Claims Determination Post 9/11 in Canada
Constance MacIntosh

Abstract

This chapter has a modest goal: to track some legislative changes since 9/11 that impact on two rights of asylum seekers where those changes are linked to or justified by security concerns. These are the rights of asylum seekers to have their claim determined, and to not be detained. This article identifies how legislation restricting these key rights of asylum-seekers has largely been promoted as necessary for Canada to be able to protect its public from criminality and security threats. The article thus queries whether measures, especially those introduced under Bill C-11, The Balanced Refugee Reform Act1 and those proposed under Bill C-4, Preventing Human Smugglers from Abusing Canada’s Immigration System Act,2 actually enable greater security. It concludes that some of the legislative changes have no clear connection with enhancing security, and may result in incentives for asylum-seekers to avoid making their presence known to officials, thus creating new security concerns. The paper concludes by finding that some of the proposed legislative measures regarding detention will likely not withstand a Charter challenge.

Governing Mobility and Rights to Movement Post 9/11: Managing Irregular and Refugee Migration Through Detention
Kim Rygiel

Abstract

The arrival of Sri Lankan migrants in British Columbia on the MV Sun Sea in the summer of 2010 renewed policy discussion in Canada around “managing migration” and the role that detention of irregular migrants and refugee claimants should play in this process. Within this context calls emerged for Canada to adopt models for handling irregular migration similar to those being practiced in Europe and previously used in Australia. In response, the Canadian government introduced Bill C-49 (reintroduced as Bill C-4) Preventing Human Smugglers from Abusing Canada’s Immigration System Act. This article examines Bill C-4 within the context of the greater securitization of mobility in the post-9/11 period as well as comparative border control policy in Australia and Europe. The article argues that governments increasingly use detention as a technology of citizenship to govern mobile populations and their rights to movement, with the effect of undermining established refugee rights to movement.

Counter-Terrorism In and Outside Canada and In and Outside the Anti-Terrorism Act
Kent Roach

Abstract

Canadian counter-terrorism as practiced in the Anti-Terrorism Act (ATA) has been more respectful of human rights than Canadian counter-terrorism as practiced outside the ATA and outside of Canada. Although the ATA was influenced by British law, its definition of terrorism, preventive arrest, investigative hearings and secrecy provisions are more restrained than those of some other democracies. The ATA demonstrates a commitment to legality and democratic debate. In contrast, counter-terrorism outside the ATA has involved indeterminate detention of non-citizens on the basis of secret evidence and with the threat of deportation to torture; listing of terrorists on the basis of secret evidence; and refusal by Canadian courts to require Canada to request Omar Khadr’s repatriation or to restrain Canadian officials from transferring Afghan detainees to possible torture by Afghan officials. Despite the recommendations of the Arar and Air India public inquiries, Canada does not have adequate accountability structures to monitor and restrain informal and transnational counter-terrorism.

The Role of International Law in Shaping Canada's Response to Terrorism
Frédéric Mégret

Abstract

The impact of international law on Canada’s response to terrorism post 9/11 has been significant, but in ways that are less benign than typically anticipated by international lawyers. There is a tension between the strong obligations imposed by the Security Council to combat terrorism and the soft pull of international human rights treaties and mechanisms. The Executive Branch has tended to implement international law selectively, rushing to adopt the former and drawing far less on the latter to ensure that counter-terrorism efforts respect core liberties. Surprisingly, it is domestic courts that have occasionally had a role to play in successfully resisting some of international law’s illiberal tendencies. Canada’s post 9/11 response is not only shaped by international law, it is shaping international law’s relation to Canada.

Book Review

Book Review of Kent Roach
From Counter Terrorism to National Security: The 9/11 Effect: Comparative Counter-Terrorism
John McLaren

Articles

Legislators and Religious-Based Reasoning
Diana Ginn, David Blaikie, Micah Goldstein

Overview

Volume 21.1

Reflections on the Kitchen Accord
Roy J. Romanow

Quelques opportunités et défis conceptuels, fonctionnels et politiques du fédéralisme
Hugo Cyr

Judges and Religious Based Reasoning: A Response to Ginn and Blaikie
Sarah E. Hamill

Articles

The Power of a Single Feather: Meech Lake, Indigenous Resistance and the Evolution of Indigenous Politics in Canada
Ian Peach

Meaningless Mantra: Substantive Equality after Withler
Jennifer Koshan and Jonnette Watson Hamilton

Born to Be Together: The Constitutional Complexity of the EU
Giuseppe Martinico

Sex Work By Law: Bedford's Impact on Municipal Approaches to Regulating the Sex Trade
Elaine Craig

Book Review

Review of Habeas Corpus: From England to Empire, Paul D. Halliday
John McLaren

Articles

The 22nd Annual McDonald Lecture in Constitutional Studies: Canada's Response to Terrorism
The Honourable Frank Iacobucci, C.C., Q.C.

Abstract - N/A

Back to Basics: A Critical Look at the Irwin Toy Framework for Freedom of Expression
Robin Elliot

Abstract

The author argues that the analytical framework that the Supreme Court of Canada developed in 1989 in Irwin Toy Ltd v Quebec to resolve freedom of expression cases under s 2(b) of the Charter, and that the Court still uses today, is seriously flawed. He focuses on the two main elements of that framework—the exceedingly broad understanding of freedom of expression on which it is based and the complex set of rules it prescribes for finding an infringement on freedom of expression. His concerns in relation to those elements are that: (1) the meaning the Court has given to freedom of expression for the purposes of s 2(b) lacks a solid justificatory basis, ignores general interpretive principles the Court has adopted in relation to the Charter, encourages pointless and wasteful litigation, and fails to appreciate the symbolic function that an instrument like the Charter performs; and (2) the roadmap the Court prescribes for determining whether or not governmental action infringes on freedom of expression is inconsistent with the Court’s own prior jurisprudence on this feature of Charter analysis, lacks logical coherence, misapplies a feature of American free speech jurisprudence of questionable merit, and is incomplete.

Towards a Civil Republican Theory of Canadian Constitutional Law
Hoi Kong

Abstract

Civic republican theory occupies an important place in the contemporary public law literature of some jurisdictions but has not significantly influenced Canadian constitutional theory. Moreover, and again unlike other jurisdictions, there have been few theoretical accounts that provide a unified view of Canadian constitutional law rather than focusing on specific topics (i.e., particular rights) or domains (i.e., federalism or rights). / is essay begins to fill these gaps in the literature. I will argue that civic republicanism fits and justifies a broad range of domains of Canadian constitutional law. I build my argument on what is considered by many to be a core feature of civic republicanism, namely, the principle of non-domination, and I offer arguments that are consistent with a particular strand of civic republican theory. This essay will focus that version of the theory on rule-of-law issues and on questions of individual rights. In Part I, I will distinguish civic republican from liberal theories of law. In Part II, I will argue that the concept of the rule of law, as it has been developed in Canada, evidences core features of civic republicanism. In Part III, I will argue that some individual rights doctrines also manifest essential characteristics of civic republican theory, including solicitude for the capacity of citizens to engage on equal terms with one another in public debates, and concern about the vulnerability of citizens to arbitrary state action.

Book Review

Book Review of Dennis Baker
Theory as Therapy: Not Quite Surpreme: The Courts and Coordinate Constitutional Interpretation
Ken Dickerson

Case Comment: Canada (Attorney General) v PHS Community Services Society
Rahool P.Agarwal

Canada's re-emerging Division of Powers and the Unrealized Force of Reciprocal Interjurisdictional Immunity
Dwight Newman

Federalisme Canadien et Lutte Contre Les Changements Climatiques
Alexis Belanger

Canadian Federalism in the Context of Combating Climate Change
Alexis Belanger

The Manual of Official Procedure of the Government of Canada: An Expose
Nicholas A. MacDonald and James W.J. Bowden

Full Issue

The 20th Annual McDonald Lecture in Constitutional Studies

What Canadian Federalism Means in Québec
Guy Laforest

Articles

The Bouchard-Taylor Report on Cultural and Religious Accommodation: Multiculturalism by Any Other Name?
Luc Tremblay

Abstract

Quebec’s Consultation Commission on Accommodation Practices Related to Cultural Differences (the Bouchard-Taylor Commission) was created amid public controversies over the extent to which certain religious or cultural practices should be “accommodated” within Quebec. While multiculturalism has become an important value in the rest of Canada, that value does not comport easily with Quebec nationalism and Quebec conception of sociocultural integration elaborated in the last thirty years. With this background, the Bouchard-Taylor Commission’s 2008 Report adopts a concept of “interculturalism.” The Report argues that interculturalism is preferable to multiculturalism because it offers a better model of cultural integration; collective identity; and church-state relations. Interculturalism also suggests a better framework for handling cultural and religious requests for reasonable accommodation. The author argues that, instead of proposing a true, novel alternative to multiculturalism, the Report uses a concept of interculturalism that does not fundamentally differ from multiculturalism. Both terms promote or emphasize ethnocultural diversity and equal respect for cultural differences. Multiculturalism can also contribute to formation of collective identity. In addition, the author argues that multiculturalism, as much as interculturalism, can include a commitment to the principle of “open secularism” in church-state relations. Finally, the “citizen route” of accommodation proposed by the Report is not exclusive to interculturalism, but also plays an important role in theories of multiculturalism.

A Strategic Approach to Judicial Legitimacy: Supreme Court of Canada and the Marshall Case
Vuk Radmilovic

Abstract

Recent years have seen a worldwide increase in excursions of judicial power into the political sphere. One obvious effect of this judicialization of politics is to highlight legitimacy concerns associated with the exercise of judicial power. Indeed, how do courts attain and retain institutional legitimacy, particularly in the context of their increasing political relevance? The paper provides an answer to this question by presenting a strategic theory of how courts establish and promote institutional legitimacy and by applying it to the 1999 Marshall case decided by the Supreme Court of Canada. The case provides a unique opportunity to test judicial responsiveness to factors operating in the external, political environment through the application of a controlled before-after case comparison. The theory shows that courts cultivate legitimacy by exhibiting sensitivities to what are political and non-legal factors.

Restraint and Proliferation in Criminal Law
Jula Hughes

Abstract

This paper considers why the criminal law continues to grow despite broad-based policy consensus on the harms of over-criminalization. I argue that political expediency combines with the Canadian constitutional arrangement under ss. 91 and 92 of the Constitution Act, 1867 to drive the expansion of Canadian criminal law. The federal power to criminalize and the provincial responsibility for enforcement amounts to a constitutionally directed unfunded mandate. In a case study of the Westray Bill, the paper examines the political mechanisms and institutional forces that further the expansion of the criminal law and that result in ineffective, inefficient and ultimately harmful prohibitions. The paper concludes that it is legitimate to invoke the constitutional power of the courts to limit the scope of the criminal law and shows how this can be achieved without abandoning established constitutional and criminal law principles and precedent.

Boumediene and the Meanings of Separation of Powers in U.S. Emergency Law
Emily Hartz and Dimitrios Kyritsis

Abstract

This article examines the conception of the U.S. courts’ role vis-à-vis the political branches of government in a national emergency that underlies the recent case-law on the rights of the detainees held in Guantanamo Bay and in the U.S. These cases struck historic blows to the Bush Administration’s policies on terrorism—the latest of these blows being the Court’s 2008 decision in Boumediene v. Bush. It has been argued that these cases confirm a pattern in the U.S. Supreme Court’s approach to rights during war-time, namely to revert to procedural arguments rather than to develop a framework of substantive constitutional rights to evaluate conflicts between security and rights during times of crisis. We argue that this approach does not square with Boumediene. Instead, we offer an alternative analytical approach, whereby courts retain a supervisory role with regard to the content of such measures and their conformity with substantive constitutional guarantees. According to this approach, judicial duty in a national emergency is determined by the proper combination of considerations of both content and institutional design. We call this the “mixed approach” and we argue that it better accords with the Court’s decision in Boumediene.

Book Review

Book Review on James B. Kelly and Christopher P. Manfredi, eds.
Self-Defeating and Self-Transforming Dimensions of Proportionality Analysis:
Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms
Dwight Newman

Overview

VOLUME 19.3

Introduction
Rebecca Johnson

Part 1-Insights on Insite

Insite: Site and Sight
Margot Young

Jurisdictional Justice, Democracy and the Story of Insite
Hester Lessard

Insite: Right Answer, Wrong Question
Gillian Calder

Applying the Burden of Proof and Creating Connections to Communities
Patricia Cochran

Section 7, Insite and the Competence of Courts
Jeremy Webber

Part 2 - Some Pedagogical Insights

Lost in Translation: Social Realities, Insite, and the Law in Legal Education
Tim Richards

Some Pedagogical Reflections
Freya Kodar

Pedagogies of Mapping
Rebecca Johnson