R. v. Conway: UnChartered Territory for Administrative Tribunals

In R. v. Conway, the Supreme Court of Canada reformulated and simplified the test for when an administrative tribunal is a court of competent jurisdiction for the purposes of considering constitutional questions and ordering Charter remedies. Previously, there were two different tests for when a tribunal was a court of competent jurisdiction: one for when an administrative tribunal was considering whether a legislative provision was constitutional, and a second when it was considering whether it had jurisdiction to grant a Charter remedy. Conway amalgamated and simplified the tests. In so doing, the Supreme Court made clear that administrative tribunals should play a primary role in determining Charter issues and that the fundamental issue is whether a tribunal can consider questions of law. It is possible, under Conway, that many more tribunals will be considered courts of competent jurisdiction. However, as the powers of tribunals are constrained by the legislative scheme, in practice the change may not be as significant as initially thought

Liberty, Equality and Deference: A Comment On Colin Feasby’s “Freedom of Expression and the Law of the Democratic Process”

This paper discusses Colin Feasby’s paper “Freedom of Expression and the Democratic Process” on the Harper decision and recognizes his previous scholarship on this topic as making a significant and valuable contribution to our understanding of judicial review of the democratic process. Bredt and Pottie recognize that the egalitarian model cannot fully address the variety of participants and resources at play. They believe that judicial deference is unwarranted and indeed hazardous in this context. Experience has shown that a high level of third party campaign spending does not trigger the hypothetical evils associated with independent expenditures, nor is it outcome determinative. On the other hand, there is a clear need to keep Parliament’s tendency towards self-interested regulation in check, particularly when that tendency is actualized in the form of restrictions to participation in democratic processes. This need is most acute in the context of electoral regulation. an election is the point at which the voter is most in need of information from all sources, and thus this is the most important time for political participation by all, including third parties. Government measures that restrict that participation should, in their view,be strictly scrutinized

Liberty, Equality and Deference: A Comment On Colin Feasby’s “Freedom of Expression and the Law of the Democratic Process”

This paper discusses Colin Feasby’s paper “Freedom of Expression and the Democratic Process” on the Harper decision and recognizes his previous scholarship on this topic as making a significant and valuable contribution to our understanding of judicial review of the democratic process. Bredt and Pottie recognize that the egalitarian model cannot fully address the variety of participants and resources at play. They believe that judicial deference is unwarranted and indeed hazardous in this context. Experience has shown that a high level of third party campaign spending does not trigger the hypothetical evils associated with independent expenditures, nor is it outcome determinative. On the other hand, there is a clear need to keep Parliament’s tendency towards self-interested regulation in check, particularly when that tendency is actualized in the form of restrictions to participation in democratic processes. This need is most acute in the context of electoral regulation. an election is the point at which the voter is most in need of information from all sources, and thus this is the most important time for political participation by all, including third parties. Government measures that restrict that participation should, in their view,be strictly scrutinized

R. v. Bryan: The Supreme Court and the Electoral Process

This paper provides an overview of recent Supreme Court of Canada jurisprudence in the area of freedom of expression in the political context, focusing on Thomson Newspapers Co. v.Canada (Attorney General), Harper v. Canada (Attorney General) and R. v. Bryan. In R. v. Bryan, the Court was faced with a constitutional challenge under section 2(b) of the Charter to section 329 of the Canada Elections Act, which prohibits the transmission of election results in one electoral district to another electoral district before the close of all polling stations in that other district. A majority of the Court held that the Attorney General was justified in limiting political expression. The paper critiques the elevation of “informational equality” to a democratic imperative. The paper also discusses how the Court has extended the “reasoned apprehension of harm” test from its origins in speech at the fringes to political expression at the core of the section 2(b) guarantee. Finally, the paper considers the majority’s unquestioning deference to government in the electoral process. The paper’s conclusion is that the Supreme Court of Canada is not providing core political expression with the protections that are demanded

R. v. Bryan: The Supreme Court and the Electoral Process

This paper provides an overview of recent Supreme Court of Canada jurisprudence in the area of freedom of expression in the political context, focusing on Thomson Newspapers Co. v.Canada (Attorney General), Harper v. Canada (Attorney General) and R. v. Bryan. In R. v. Bryan, the Court was faced with a constitutional challenge under section 2(b) of the Charter to section 329 of the Canada Elections Act, which prohibits the transmission of election results in one electoral district to another electoral district before the close of all polling stations in that other district. A majority of the Court held that the Attorney General was justified in limiting political expression. The paper critiques the elevation of “informational equality” to a democratic imperative. The paper also discusses how the Court has extended the “reasoned apprehension of harm” test from its origins in speech at the fringes to political expression at the core of the section 2(b) guarantee. Finally, the paper considers the majority’s unquestioning deference to government in the electoral process. The paper’s conclusion is that the Supreme Court of Canada is not providing core political expression with the protections that are demanded

R. v. Conway: UnChartered Territory for Administrative Tribunals

In R. v. Conway, the Supreme Court of Canada reformulated and simplified the test for when an administrative tribunal is a court of competent jurisdiction for the purposes of considering constitutional questions and ordering Charter remedies. Previously, there were two different tests for when a tribunal was a court of competent jurisdiction: one for when an administrative tribunal was considering whether a legislative provision was constitutional, and a second when it was considering whether it had jurisdiction to grant a Charter remedy. Conway amalgamated and simplified the tests. In so doing, the Supreme Court made clear that administrative tribunals should play a primary role in determining Charter issues and that the fundamental issue is whether a tribunal can consider questions of law. It is possible, under Conway, that many more tribunals will be considered courts of competent jurisdiction. However, as the powers of tribunals are constrained by the legislative scheme, in practice the change may not be as significant as initially thought

The Death of Oakes: Time for a Rights-Specific Approach?

In this paper, the authors develop their the sis that the time has come to abandon the universal framework for the application of section 1 of the Canadian Charter of Rights and Freedoms set out in R. v. Oakes. The paper describes how the Oakes test has been eroded, diluted and, in some cases, abandoned. The authors review the history of the application of the Oakes test, as well as recent developments in Supreme Court jurisprudence. The paper concludes that the Supreme Court’s struggles with Oakes are inherent in any attempt to apply a universal approach to section 1 analysis, and conclude that a rights-specific approach to section 1 balancing should be adopted

The Death of Oakes: Time for a Rights-Specific Approach?

In this paper, the authors develop their the sis that the time has come to abandon the universal framework for the application of section 1 of the Canadian Charter of Rights and Freedoms set out in R. v. Oakes. The paper describes how the Oakes test has been eroded, diluted and, in some cases, abandoned. The authors review the history of the application of the Oakes test, as well as recent developments in Supreme Court jurisprudence. The paper concludes that the Supreme Court’s struggles with Oakes are inherent in any attempt to apply a universal approach to section 1 analysis, and conclude that a rights-specific approach to section 1 balancing should be adopted