Subscribe by RSS

Joint Parliamentary Committee Assisted Dying Report Goes Beyond Scope, Ignores Evidence

Trudo Lemmens
Tuesday, April 5, 2016

This blog post follows my earlier posting about Balancing Access to Physician Assisted Dying and Protecting the Vulnerable

The following op-ed with David Baker was first published on the Globe and Mail website on February 27, 2016. We also added a short note in relation to attempts by some colleagues to impose changes to our text after publication.

Assisted Dying Report Goes Beyond Scope, Ignores Evidence

David Baker and Trudo Lemmens

Published Globe and Mail Saturday, Feb. 27, 2016

David Baker is a constitutional lawyer who represented the national disability groups in Rodriguez and Carter. Trudo Lemmens is Professor and Scholl Chair in Health Law and Policy at the Faculty of Law of the University of Toronto

Balancing Access to Physician Assisted Dying with Protecting the Vulnerable

Trudo Lemmens
Friday, April 1, 2016

The federal government is currently working on legislation that responds to the Supreme Court’s Carter v. Canada (AG) decision, in which the Court invalidated an absolute prohibition on physician assisted dying and invited the legislator to develop a “carefully designed and monitored system of safeguards.” The Carter decision declared the criminal prohibition void insofar it prohibits physician assisted dying for a “competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” The Court provided no further detail about how to implement these ‘parameters’, and stated explicitly: “the scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.” The case involved people who were terminally ill and/or, in the words of the trial judge in the case, people with “advanced weakening capacities with no chance of improvement.” In fact, at the trial level the claim made by the British Columbia Civil Liberties Association was also narrowly framed as a claim to recognize the right to physician assisted dying of those “who are suffering unbearably at the end of life.”

The Constitutionality of Administrative Monetary Penalties: Defining the punitive paradigm

Kenneth Jull
Saturday, August 8, 2015

The Supreme Court of Canada released its anticipated decision in Guindon v. Canada[i]on July 31, 2015, which held that administrative monetary penalties ("AMPs") under section 163.2 of the Income Tax Act (the "ITA")[ii] are not offences that trigger constitutional protections such as the right to be presumed innocent.

Other AMPs schemes and the punitive paradigm

The door is still open for constitutional challenges to the myriad of other AMPs if they fall within the 'punitive paradigm'.  In Guindon, the Supreme Court observed that "[a] monetary penalty may or may not be a true penal consequence" and "[i]t will be so when it is, in purpose or effect, punitive."[iii]  Where a penalty's purpose or effect is punitive, this will trigger Charter[iv]rights.  The Court articulated a balancing test to determine whether an outcome is punitive:

Attack Ads, Copyright, and Collusion: Have Canada's Major Broadcasters Violated the Competition Act?

Ariel Katz
Tuesday, October 14, 2014
Canada's first (and the world's first) competition act: the Combines Act of 1889
Originally posted on Prof. Katz's blog. 

Last week reports emerged that the Government is considering a new copyright exception for political advertising. The reports suggested that the exception would permit the use of news content by political parties without authorization. While most of the media coverage of this story focused on the copyright issue and the phenomenon of attack ads, documents that Sun Media obtained from the CBC (under an Access to Information request) reveal an even more interesting and more important story, both politically and legally. These documents, offering a rare glimpse behind the scenes of Canada's major media organization, reveal a picture of a concerted action between the majority of Canada's news outlets, action that might run afoul the Competition Act. 

The Difference Between Lunchtime Prayer and a Jesus T-shirt

Ed Morgan
Wednesday, May 9, 2012

This commentary was first published by Prof. Ed Morgan in The Globe and Mail on May 9, 2012.

A public school in Toronto thinks a clergyman can be invited to conduct Islamic prayers at lunchtime on school grounds. As a school trustee explains it, “What we’re doing is what we should be doing as a school board and that is accommodating students’ needs no matter what their religion is.”

A public school in Chester Basin, N.S., thinks a student can be prohibited from wearing a T-shirt with a Christian message on school grounds. As school trustees explain it, “It is expected that students will not wear clothing with messages that may offend others’ beliefs, race, religion, culture or lifestyle.”

Does Canadian law really get such a failing grade?

Whether religious expression is permitted in schools turns on the meaning given to “freedom of religion” and “freedom of expression.” The confusion over this question calls for a review class on the Canadian Charter of Rights and Freedoms.

Beginning in the mid-1980s, the courts determined that public schools cannot teach religion in a doctrinal way. While they can, and often do, offer history and social-studies classes that survey world religions, the mandatory separation of church and state prohibits them from teaching religion as it is taught to adherents of that religion – i.e., as a matter of belief rather than general knowledge.

Foreign Affairs: A Delicate Balancing Act

Ed Morgan
Wednesday, April 18, 2012

This article by Prof. Ed Morgan was originally published in The Lawyers Weekly, April 13, 2012.

When it comes to conducting foreign affairs, it is well established that the constitution puts the weight of responsibility on the federal government. But in recent years, the courts have deviated from that rule as often as they have invoked it.

In the Afghan prisoners case, the Federal Court of Canada explained that the government owes no constitutional duty when, after questioning, the military turns detainees over to a foreign government. The judgment presumed that Canadian forces require flexibility, and enjoy the discretion to deviate from domestic rules when they deal with an allied state and prisoners of war.

Minister Kenney’s Ban on Face Coverings is Ultra Vires

Audrey Macklin
Friday, February 17, 2012

Not only is Minister Kenney’s ban on face coverings a gratuitous insult to Muslim women, it’s ultra vires.

In the wake of all the publicity about the Minister of Immigration’s decree that no one shall be allowed to go through the citizenship ceremony with her face covered, I thought I'd find out how the ban on face coverings was authorized in law. It appears that the ban is buried in the Operations Manual on citizenship ceremonies.  The Operations Manual provides guidance to citizenship bureaucrats (including Citizenship Judges) about how to interpret and apply the law -- the Citizenship Act and the Citizenship Regulations.  Since they are only guidelines, they do not have the force of law, and are invalid to the extent that they contradict the statute or the regulations.

You can find the citizenship manual here (PDF) (see s. 6.5). The manual contains an elaborate set of instructions about how citizenship officials shall respond if a woman is both uppity and oppressed enough to show up with her face covered.

The Houdini Gambit

Jeffrey MacIntosh
Wednesday, November 24, 2010

This commentary by Prof. Jeffrey MacIntosh was first published in the Financial Post on November 23, 2010.

Do the feds have the constitutional jurisdiction to create a national securities regulator? Not surprisingly, the federal government thinks so. Also not surprisingly, the government of Quebec does not. Quebec has referred the matter to the Quebec Court of Appeal for a decision (just as the feds have sent a reference to the Supreme Court of Canada, but the Quebec court gets the first kick at the can).

Ottawa’s legal case, in a recently filed factum with the Quebec Court of Appeal, totters on the brink of schizophrenia. At the outset, the factum invites the court to conclude that the issue of constitutionality “does not involve a performance assessment of the existing 13 provincial and territorial regulators.” But, mirabile dictu, much of the balance of the argument is sedulously devoted to demonstrating the manifest superiority of federal legislation. Go figure.

Hirschl Publishes New Book: "Constitutional Theocracy"

Ran Hirschl
Thursday, September 30, 2010

Prof. Ran Hirschl has published a new book, Constitutional Theocracy (Harvard University Press, 2010).

From the publisher:

At the intersection of two sweeping global trends - the rise of popular support for principles of theocratic governance, and the spread of constitutionalism and judicial review - a new legal order has emerged: constitutional theocracy. It enshrines religion and its interlocutors as "a" or "the" source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism. A unique hybrid of apparently conflicting worldviews, values, and interests, constitutional theocracies thus offer an ideal setting-a "living laboratory" as it were-for studying constitutional law as a form of politics by other means. In this book, Ran Hirschl combines insights from legal theory, economics, theology, and political sociology with a rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in a non-secularist world.

Comprehensive Draft Federal Securities Act Released Today

Anita Anand
Wednesday, May 26, 2010

The federal government today released a draft securities act filed in support of its constitutional reference to regulate capital markets activity.  The draft act is largely based on provincial securities legislation: for example, the provisions relating to disclosure of information, prospectus offerings and the public interest power remain generally the same.  However, the act contains a number of new provisions which together appear to be improvements over existing law.

To begin, the act contains a new purposes section. In addition to protecting investors and fostering fair, efficient and competitive capital markets, the new Canadian Securities Regulatory Authority must contribute “to the integrity and stability of the financial system”.  Expanding the purposes section in this way is sound. The financial meltdown demonstrated that systemic risks can arise from increasingly complex products (such as derivatives) and highly leveraged institutions (such as hedge funds) that distribute these products. Contributing to the stability of the financial system is thus a pertinent goal of securities regulation.

Faculty Blog
Subscribe by RSS