Dialogue Theory, Judicial Review, and Judicial Supremacy: A Comment on Charter Dialogue Revisted

By suggesting that we view the judicial-legislative relationship as a dialogue, the authors of Charter Dialogue have greatly influenced constitutional debate in Canada. This commentary offers three observations about the authors\u27 latest contribution. First, it queries the continued usefulness of the term dialogue. Second, it raises concerns with the idea that section 1 of the Charter promotes dialogue, as the term is now explained by the authors. Finally, it queries the authors\u27 perspective on judicial review and their accompanying terminology

The question calls for an answer, and I propose to answer it : The Patriation Reference as Constitutional Method

The 30th anniversary of the Reference re Resolution to Amend the Constitution is an opportunity to reflect on Canada’s constitutional tradition. While the Reference is most famous for articulating a constitutional convention requiring “substantial provincial consent”, I interrogate the Reference for its broader impact on constitutional law. Situating the Reference in its historical context, I argue that it was both a product of a peculiarly Canadian legal tradition, and a harbinger of important new directions in Canadian constitutional litigation and jurisprudence

Equality before the Charter: Reflections on Fraser v. Canada (Attorney General)

Since Andrews v. Law Society of BC, the Supreme Court’s section 15 jurisprudence has been marked by inconsistency, judicial disagreement, and scholarly criticism. In Fraser v. Canada, female RCMP offıcers challenged a policy that prevented access to full-time pension benefits. Refining the concept of adverse impact discrimination and drawing on evidence of women’s economic disadvantage, the majority found that the policy constituted sex discrimination. While Justice Abella’s majority judgment has been hailed as a major victory, Justices Brown and Rowe’s dissent sharply criticized the concept of ‘substantive equality’, confirming longstanding divisions. This paper uses Fraser to reflect on the narrative of substantive equality. First, it re-examines the oft-maligned cases decided under the Canadian Bill of Rights. The prevailing story – that the Bill of Rights jurisprudence relied on a narrow, ‘formal equality’ model which was then remedied by the Charter’s section 15 – is incomplete. A closer examination reveals a complex conceptualization of ‘equality before the law’ in pre-Charter jurisprudence. Second, the paper proposes that the principle of ‘equality before the law’, with its focus on identical standards and equal treatment, remains a powerful and necessary concept. Unsettling the strict dichotomy between substantive and formal equality, the paper concludes, can help to reveal the true nature of the Court’s continuing division on how to apply section 15’s guarantee of equality

The Upside of Dissent in Equality Jurisprudence

It is impossible to imagine constitutional law without dissent. Powerful and evocative, judicial dissent suggests roads not taken and points up law’s fundamental contingency. Though often criticized, dissent has numerous positive aspects. This paper considers a benefit of dissent that is borne out by equality cases. The paper first outlines two categories of dissent and, second, canvasses section 15, including a detailed discussion of a recent, sharply divided Supreme Court decision. The paper suggests that dissents are associated with richer, more complex accounts of equality. Borrowing the language of Sunstein, the paper proposes that a divided decision that is the result of failure to reach agreement on “deep” issues is preferable to one that, as the price of unanimity, remains “shallow”

Dialogue Theory, Judicial Review, and Judicial Supremacy: A Comment on Charter Dialogue Revisted

By suggesting that we view the judicial-legislative relationship as a dialogue, the authors of Charter Dialogue have greatly influenced constitutional debate in Canada. This commentary offers three observations about the authors\u27 latest contribution. First, it queries the continued usefulness of the term dialogue. Second, it raises concerns with the idea that section 1 of the Charter promotes dialogue, as the term is now explained by the authors. Finally, it queries the authors\u27 perspective on judicial review and their accompanying terminology

Reflecting Culture: Polygamy and the Charter

The Canadian Charter of Rights and Freedoms states as a general interpretative principle that its rights and freedoms must be applied so as to preserve and maintain the multicultural heritage of Canadians. This principle stands with other broad ideals of our political community — such as pluralism, mutual respect and human dignity — which constitute important aspects of our legal culture. Any society that seeks to be diverse yet bound by common values will face deep challenges, as conflicts emerge over the meaning of “a good life”. at times, such controversies can appear to raise existential issues for the society in question. In this paper I explore one such controversy: what to do about the offence of polygamy. In 2011, in an unprecedented court proceeding, the British Columbia Supreme Court considered the constitutionality of section 293 of the Criminal Code, which penalizes all forms of polygamous unions. In an advisory opinion the Supreme Court concluded that in all but one respect the provision does not violate the Charter’s fundamental freedom of religion, or the principles of fundamental justice. In the brief confines of this paper, I interrogate the opinion as a false recounting of cross-cultural clash. The polygamy debate reveals another aspect of cultural contestation, not between cultures but within the same one — over the role of criminal law, our view of each other and our commitment to the Charter’s underlying ideals

Book Review: Nothing To Lose But Our Chains: On Constitutional Disobedience, by Louis Michael Seidman

Book review of Nothing To Lose But Our Chains: On Constitutional Disobedience, by Louis Michael Seidman

The Shadow of Absurdity and the Challenge of Easy Cases: Looking Back on the Supreme Court Act Reference

In the Supreme Court Act Reference, the Court advised that the appointment of its newest judge, Marc Nadon, was void ab initio. It concluded, as well, that the Court is an entrenched constitutional actor, whose governing statutes may be changed only through formal amendment. By any measure, the Reference was an exceptional constitutional moment. This article reviews what made it so, focussing on the case’s history, procedure, substance and public reception. The article situates the proceeding within a “perfect storm” of law and politics. It describes various dilemmas that the Court had to confront. And it offers three reasons explaining why the reaction to the Reference was unusually negative

The Shadow of Absurdity and the Challenge of Easy Cases: Looking Back on the Supreme Court Act Reference

In the Supreme Court Act Reference, the Court advised that the appointment of its newest judge, Marc Nadon, was void ab initio. It concluded, as well, that the Court is an entrenched constitutional actor, whose governing statutes may be changed only through formal amendment. By any measure, the Reference was an exceptional constitutional moment. This article reviews what made it so, focussing on the case’s history, procedure, substance and public reception. The article situates the proceeding within a “perfect storm” of law and politics. It describes various dilemmas that the Court had to confront. And it offers three reasons explaining why the reaction to the Reference was unusually negative