Aboriginal Rights and Delgamuukw v. the Queen

On the long and tortuous path to justice for the First Nations of Canada, the case of Delgamuukw v. The Queen\u27 is likely to become one of the most important landmarks. Whether the outcome of this ongoing litigation will represent a step towards, or a sidetrack from, the achievement of a just settlement for Aboriginal Peoples is now in the hands of the Supreme Court. The case raises a number of issues of immense consequence that were not addressed in the Supreme Court\u27s decision in Sparrow (1990) or that have been left unresolved by the failure of attempts to amend the constitution to explicitly recognize an inherent Aboriginal right of self-government. Is Aboriginal title an existing aboriginal right protected by section 35 of the Constitution Act, 1982 in those parts of the country where Aboriginal lands have not been ceded by treaty? Does the concept of Aboriginal rights entail a right of self-government, and if so, was that right extinguished prior to 1982

Racism and the Constitution: The Constitutional Fate of British Columbia Anti-Asian Immigration Legislation, 1884-1909

The author explores the values and forces that influenced judicial and federal cabinet decisions regarding the constitutional validity of over one hundred BC statutes discriminating against persons of the Japanese or Chinese race passed between 1872 and 1922. He argues that the interpretation of the constitutional division of powers was shaped by a racist ideology that viewed Asian immigrants as different from, and inferior to, European immigrants in all respects but one: their capacity for work. In this, the first part of his study, he focuses on the nature of the federal disallowance power and the reasons why it was used to veto the BC Immigration Acts that had the effect of prohibiting Chinese, and later, Japanese immigration

Aboriginal Rights and Delgamuukw v. the Queen

On the long and tortuous path to justice for the First Nations of Canada, the case of Delgamuukw v. The Queen\u27 is likely to become one of the most important landmarks. Whether the outcome of this ongoing litigation will represent a step towards, or a sidetrack from, the achievement of a just settlement for Aboriginal Peoples is now in the hands of the Supreme Court. The case raises a number of issues of immense consequence that were not addressed in the Supreme Court\u27s decision in Sparrow (1990) or that have been left unresolved by the failure of attempts to amend the constitution to explicitly recognize an inherent Aboriginal right of self-government. Is Aboriginal title an existing aboriginal right protected by section 35 of the Constitution Act, 1982 in those parts of the country where Aboriginal lands have not been ceded by treaty? Does the concept of Aboriginal rights entail a right of self-government, and if so, was that right extinguished prior to 1982

A Court in Need and a Friend Indeed: An Analysis of the Arguments of the Amicus Curiae in the Quebec Secession Reference

Following the narrow vote against sovereignty in the 1995 Quebec referendum, the federal government referred three questions on the legality of unilateral secession to the Supreme Court of Canada for its opinion. The Quebec government refused to participate in the proceedings on the grounds that the Quebec people alone will determine their future and anything the Supreme Court has to say on the matter is irrelevant. The Court appointed an amicus curiae, Andre Joli-Coeur, to make the arguments in favour of the Quebec government\u27s position. In this article, the author reviews the amicus\u27 arguments and the Court\u27s reasons for rejecting them. The amicus\u27 submissions revealed one thing: they revealed the weakness of the best available arguments in support of a legal right to unilateral secession. The author argues that the Court was able to bring sovereignists into a conversation framed by the Court\u27s opinion, at the same time as it was pulling the legal rug out from underneath them. The justices should be applauded for crafting an opinion that seeks to minimize the risks of social disorder that would accompany any unilateral declaration of sovereignty and to maximize the chances of a negotiated, peaceful accommodation of the political aspirations of a clear majority of Quebecers clearly expressed in any future referendum

The Harms of Child Pornography Law

The author challenges the assumption that the expansion of child pornography offenses can lead only to a decrease in harm to children and to society. He argues that Canadian child pornography law is incoherent. In some respects, child pornography law makes valuable contributions to the prevention of child sexual abuse by targeting the production, dissemination and use of material ( real child pornography) that involved harm in production. It also improves the law by criminalizing written and visual material that advocates the commission of sexual crimes against children and youth. In other respects, the law causes harm to society by suppressing thoughts and expression concerning child and youth sexuality that involved no harm in production, fall short of advocating harm and that have at best a tenuous connection to the commission of harmful acts. The Canadian child pornography offense criminalizes a range of creative expression in the absence of any persuasive evidence of a risk of harm. Amendments to the offense since the Supreme Court of Canada ruling in Sharpe (2001) have exacerbated its impact on civil liberties. A fundamental reconsideration of the design and scope of the child pornography offense is required to ensure it is focused on achieving its objectives in a constitutionally sound manner

Triage and Dissensus at the Supreme Court of Canada: A Review of the Court’s 2020 Constitutional Decisions

The onset of the COVID-19 pandemic forced the Supreme Court of Canada to make significant adaptations in 2020. The Court heard fewer appeals, decided fewer cases and adjusted to the necessity of online hearings. Despite the challenges posed by the pandemic, the Court issued a handful of landmark rulings in 2020. These rulings engaged critically with the Court’s past jurisprudence, considered a wide range of scholarship, and broke new ground by boldly clarifying and developing the law. The Court’s 2020 constitutional decisions were also characterized by a dramatic approach to triage and a remarkable degree of dissensus. The Court prioritized its limited jurisprudential resources by deciding a third of the appeals it heard in 2020 in summary oral reasons delivered from the bench. Another troubling feature of the Court’s 2020 opinions is the high level of dissensus they exhibit: the justices were deeply divided on almost all of the major constitutional cases they decided. Dissents are productive and enriching in important ways. But some of the justices’ dissenting energy in 2020 might have been better directed to the writing of reasons — any reasons — in some of the cases that the Court summarily dismissed from the bench

Equality Rights and Sexual Orientation: Confronting Heterosexual Family Privilege

Heterosexual married couples are supported by a wide array of legal privileges, benefits, rights and powers. Recently, these legal advantages - which include, but are not limited to, economic support such as tax and pension benefits - have been extended in some areas of Canadian law to unmarried cohabiting heterosexual couples. Where the law continues to extend advantages to married couples not available to unmarried couples, heterosexual couples can choose to opt in to these advantages by marrying. Persons in same-sex relationships, by contrast, have no choice in the matter. They are excluded from legal definitions of spouse and their relationships are not legally recognized. At the same time, s.15 of the Charter of Rights and Freedoms prohibits discrimination on the basis of sexual orientation. The author explores the reasons for the existence and persistence of this contradictory legal situation, and critiques the rationalizations that are used to sustain the social and legal subordination of gays and lesbians. Until legal decision-makers are willing to confront and dismantle the legal manifestations of heterosexism, freedom and equality will continue to be denied on the basis of sexual identity