Canadian Legal Ethics: Ready for the Twenty-First Century at Last

This article analyzes the transformation in the scholarship of legal ethics that has occurred in Canada over the last decade, and maps out an agenda for future research. The author attributes the recent growth of Canadian legal ethics as an academic discipline to a number of interacting factors: a response to external pressures, initiatives within the legal profession, changes in Canadian legal education, and the emergence of a new cadre of legal ethics scholars. This article chronicles the public history of legal ethics in Canada over the last decade and analyzes the first and second wave of scholarship in the area. It integrates these developments within broader changes in legal education that set the stage for the continued expansion of Canadian legal ethics in the twenty-first century. Reprinted by permission of the publisher

A Tale of Two Maps: The Limits of Universalism in Comparative Judicial Review

For most of the twentieth century, the dominant paradigm in comparative public law was particularism. This was accompanied by a strong skepticism towards universalist features and possibilities in public law and, especially, constitutional law. With the rise of judicial review after World War I--and especially in Eastern Europe after the collapse of the Soviet Union--comparative judicial review has begun to flourish. However, comparative scholarship on judicial review overemphasizes the centrality of the question of legitimacy of judicial review in a democratic polity. This has been a result of the mistaken extrapolation of the American debate over judicial review to other countries. Examples from Canada, South Africa, and Israel reveal that the question of legitimacy is, in each of these countries, less important and decisively different in character than in the United States. It is therefore time to recall and embrace some of the particularist skepticism when comparing judicial review across different legal systems

Comparative Law at the Supreme Court of Canada in 2008: Limited Engagement and Missed Opportunities

This paper examines the use of comparative law by the Supreme Court of Canada in its 2008 constitutional cases. For all the rhetoric surrounding the Supreme Court as a global constitutional actor, the Supreme Court’s use of comparative law in the 2008 Term was quite modest. of the 12 constitutional cases in 2008, three used comparative law. The Court’s use of comparative constitutional law in 2008 can be described in terms of limited engagement and missed opportunities. In this paper, the author explains why we should be interested in the Supreme Court’s use of comparative law. He the n examines the actual use of comparative law in the companion cases of R. v. Kang-Brown and R. v. M. (A.), as well as the anomalous use of comparative law in Canada (Justice) v. Khadr. The author the n critiques the non-use of comparative law in R. v. Kapp, the Court’s most important equality decision in a decade. The author concludes with words of caution about the future of the Supreme Court of Canada’s international influence and a note of optimism about the possibilities for future comparative engagement

Courting Constitutional Danger: Constitutional Conventions and the Legacy of the Patriation Reference

The legacy of the Supreme Court’s decisions in the Patriation Reference and the Quebec Veto Reference is more political than jurisprudential. In particular, the Supreme Court’s decision on the justiciability of constitutional conventions has created a dangerous precedent whereby political actors attempt to manipulate the courts into influencing a particular political outcome. The election of May 2, 2011 presented precisely such a dangerous opportunity. This paper develops the concept of “constitutional danger”, the idea that certain actions may constitute threats to our constitutional order. It does so by linking the events of the springs of 1981 and 2011. The paper asserts that by answering the convention question and assuming the power to “recognize” constitutional conventions, the Supreme Court courted constitutional danger. The Supreme Court has developed practical ways of avoiding adjudicating such crises; however, the embers of future constitutional crises are still smouldering in the pages of the Patriation Reference

A Tale of Two Maps: The Limits of Universalism in Comparative Judicial Review

The explosion of scholarship in comparative constitutional law in the last decade tends to overshadow the traditional suspicion that comparative law exhibited towards public law. For the greater part of the 20th century, the dominant paradigm in comparative public law was particularism and strong skepticism towards universalist features and possibilities in public law, especially constitutional law. With the rise of judicial review after World War II and especially in Eastern Europe after the collapse of the Soviet Union, comparative judicial review has begun to flourish. This paper is a comment on a paper by Professor Miguel Schor entitled Mapping Comparative Judicial Review presented at the Second Osgoode Hall Law School Constitutional Law Roundtable in Toronto in February 2007. In this paper, the author argues that the comparative scholarship on judicial review overemphasizes the centrality of the Question of Legitimacy of judicial review in a democratic polity. This is attributed to the mistaken extrapolation of the American debate over judicial review to universal application. Drawing on the examples of Canada, South Africa and Israel, the author argues that the Question of Legitimacy has less importance and a decisively different character in those countries than in the United States. It is time to recall and embrace some of the particularist skepticism in comparing judicial review across different legal systems

Courting Constitutional Danger: Constitutional Conventions and the Legacy of the Patriation Reference

The legacy of the Supreme Court’s decisions in the Patriation Reference and the Quebec Veto Reference is more political than jurisprudential. In particular, the Supreme Court’s decision on the justiciability of constitutional conventions has created a dangerous precedent whereby political actors attempt to manipulate the courts into influencing a particular political outcome. The election of May 2, 2011 presented precisely such a dangerous opportunity. This paper develops the concept of “constitutional danger”, the idea that certain actions may constitute threats to our constitutional order. It does so by linking the events of the springs of 1981 and 2011. The paper asserts that by answering the convention question and assuming the power to “recognize” constitutional conventions, the Supreme Court courted constitutional danger. The Supreme Court has developed practical ways of avoiding adjudicating such crises; however, the embers of future constitutional crises are still smouldering in the pages of the Patriation Reference

Reforming the Supreme Court Appointment Process, 2004-2014: A 10-Year Democratic Audit

This paper analyzes the Supreme Court appointment process over the 10-year period from 2004 through the end of 2013. The paper conducts a democratic audit of the Supreme Court appointment process, not an evaluation of the judges appointed through this process. The paper first presents a short history of the Supreme Court appointments process between 2004 and 2013. It sets out the mechanisms under which each of the eight judicial appointments was made during this period. Next, it introduces the concept of a democratic audit and identifies the drivers of change to the appointments process. It argues that prior to 1992 proposed reforms to the Supreme Court amendment process were motivated by concerns about federalism: incorporating a role for the provinces in the appointment process. However, after the failure of the Charlottetown Accord (1992), the motivation changed and reform of the Supreme Court appointment process became part of a democratic reform agenda proposed first by the opposition Reform Party, the n by Liberal leader Paul Martin, both in his leadership campaign and during his tenure as Prime Minister, and finally by the Conservative Party led by Prime Minister Stephen Harper. This part of the paper also addresses an issue that did not factor into the reforms — any perceived deficiency in the quality of past appointments or concerns about the legitimacy of the Supreme Court itself. Since 1992, the key factors articulated as the basis for changing the appointment process have been (1) transparency; (2) accountability; and (3) public knowledge about the Supreme Court and its judges. These are the factors used for evaluation through this democratic audit. The next part of the paper conducts the democratic audit and finds that the reforms have largely failed to deliver the promised transparency and accountability. Conversely, the reforms have been very successful in serving a public education function about the Supreme Court and its work. The paper the n offers recommendations for “reforming the reforms” in order to achieve the goals of transparency and accountability in the appointment process, arguing that the government should publish a detailed protocol which would set out the qualifications, consultation to be followed, procedure for evaluation, etc. The paper also proposes a revamped advisory committee which would operate in a more open and transparent fashion and produce a report on its work. The public hearings of nominees should continue, but only if the Minister of Justice also appears to answer questions about the process and about why the nominee was selected

Constitutional Legitimacy and Responsibility: Confronting Allegations of Bias After Wewaykum Indian Band v. Canada

This paper reviews the unusual case of Wewaykum Indian Band v. Canada where a motion to vacate the judgment was brought after the Court had rendered a unanimous decision on the merits of the case. It was alleged that a reasonable apprehension of bias existed because of involvement that Justice Binnie (who authored the decision) had with this file while Associate Deputy Minister of Justice of Canada some 15 years earlier. In the first part of the paper, the author reviews the Supreme Court’s decision in Wewaykum, focusing on several key issues in the disqualification motion. In the second part of the paper, the author contends that Wewaykum is also an important constitutional case. The author contends that judicial impartiality is a core value in the Canadian constitutional system and that challenges to the impartiality of the Supreme Court constitute attacks on the Constitution itself. In response to the age old question of Sed quis custodiet ipsos Custodes? — who guards the guardians — this paper argues that Parliament, the bar and the Court itself each have a duty to protect the integrity of the Court. The paper proposes means for each of these parties to protect the Court and, ultimately, the Constitution as well