Canadian Constitutional Law

The David and Goliath story continues; Goliath is still winning.

Little Sister's Bookstore's protracted struggle with Canada Border Services Agency (CBSA) — formerly called Canada Customs — just keeps hitting the wall, thanks in large part to the Supreme Court Of Canada.

In its latest decision the Supreme Court last month refused to award Little Sister's with advance costs to fund its ongoing lawsuit over repeated seizures of its books by border cops.

It's not like the Supreme Court hasn't acknowledged that CBSA discriminates against Little Sister's. The seizures go back 20 years. In 2000 the Supreme Court told the agency in no uncertain terms to stop violating Little Sister's Charter rights by targeting lesbian and gay material. But the court upheld the border cops' censorship regime.

In 2002 Little Sister's filed an appeal against the seizure of two collections of gay adult comics, some with SM themes. Border cops then seized a few more titles, this time gay erotic fiction collections. Preparing once again to go into battle against an opponent with very deep pockets (funded by us taxpayers), Little Sister's lawyer Joe Arvay asked the judge to make a rarely used order for advance costs, to help Little Sister's pay for its formidable legal bills.

Adam Sandler’s new film I Now Pronounce You Chuck and Larry is causing quite a stir.   In the film, Chuck (Adam Sandler) and Larry (Kevin James) are New York fire fighters (it doesn’t get any more heroic) who enter into a sham gay marriage.  Although the film might not to be everyone's taste (typical Sandler slapstick comedy with lots of homophobic jokes thrown in for good measure), it may tell us alot about the politics of same sex marriage in America.

On the occasion of the 25th anniversary of the  Charter, I offer some skeptical thoughts on the success of the Charter as an instrument of nation-building, in Bills of Rights as Instruments of Nation-Building in Multinational States: The Canadian Charter and Quebec Nationalism, posted on SSRN.  Here is the abstract (after the break):

Robert Fulford writes a complex piece in this morning’s newspaper ["Modernism isn't written in stone", National Post, Saturday, August 25, 2007, p. A23], with which I both agree and disagree. Fulford, in his usual concise way, does three things at once. First, he posits the separation of religion and government as essential to the development of modern democracies, citing the contest between Islamists and secular nationalists as central to determining the political course of Middle Eastern societies. Next, he states that although state-imposed religion is always pre-modern, contemporary democracies can and do differ on their particular approach to the subject and that not all adhere to the model of strict separation. Finally, he states that Ontario’s public support for a Roman Catholic separate school system is in the tradition of democracies giving a small nod to religious heritage without undermining their essential liberal structure.

By visiting scholar Adam Dodek.

One way to analyze the Ontario election results is in terms of a decisive rejection of constitutional change by Ontarians.

Ontarians generally want their premiers and their governments to focus on the business of governing rather than on constitutional change.  Premier David Peterson was punished at the polls in 1990 in part for focussing on Meech Lake and Canadian unity and Premier Bob Rae often seemed more interested in constitutional issues like Charlottetown than the more mundane issues that capture the Tim Horton's crowd.  Somehow John Tory fell into a similar trap by daring even to raise the issue of funding for faith-based schools.  After the Supreme Court of Canada's 1996 Adler decision, the issue of funding for non-Catholic faith-based schools was transferred from the judicial to the political realm.  Most politicians knew well enough that religion and politics make for an incediary mix (see Bill Davis' extension of funding for Catholic schools in 1984 and Premier McGuinty's experience with Sharia law from 2004 and 2005) and were content to let the issue lie dormant.  Ultimately, Tory was unable to foresee let alone control the firestorm that he had sparked and he was punished at the polls as a result.