Suchergebnisse

From the vantage point of Summer 2020, 2019 seems almost a mirage. The conditions created across Canada by government and individual responses to COVID-19 were all but unimaginable when 2019 drew to a close, and the legal issues that preoccupy those interested in constitutional and public law now revolve around rapidly evolving rules and policies designed to protect public goods like health and health care. Questions of profound significance to constitutional lawyers, such as the location of limits on state powers, the appropriate roles and relative competencies of courts and governments, the place of state law in creating the good life, and how to think about the nature of a public/private divide, are all in play on a daily basis in late Summer 2020. Yet, many of us do not have time to reflect on them, caught up as we are in the complexities of work life and family life during the COVID-19 pandemic.

This judgment of the Women's Court of Canada takes issue with the reasons, but not the result, in the Supreme Court of Canada's treatment of R v Kapp. It concludes that the Supreme Court was wrong to accept the argument that there was discrimination on the ground of race. Discrimination under section 15 has three required parts: differentiation on an enumerated or analogous ground that is discrimination. Noting that the meaning of "race" is little discussed in jurisprudence of the Supreme Court, the judgment demonstrates that the arguments made in Kapp and the nature of the impugned regulations do not support a conclusion of differentiation on the ground of race (although they may support differentiation on the ground of Band membership). If Kapp is not a case in which the appellants had all of the elements of a section 15 claim, then it was not an appropriate case in which to provide guidance on the doctrine of section 15(2) and section 25. Sections 35 and 25 resist the racialization of Indigenous peoples in Canada, and together with case law, they offer a solid constitutional basis—indeed, requirement—for the recognition of Indigenous sovereignties. Kapp, though it ultimately provides a safe haven for ameliorative programs, ignores the constitutional position of the Musqueam, Tsleil-Waututh (Burrard), and Tsawwassen Nations affected by the regulations at issue. The Supreme Court should not have considered section 15(2), as there was no prima facie case under section 15(1) of discrimination on the basis of race, and the claim should have failed on that basis.

The author reviews the 11 constitutional decisions released by the Supreme Court of Canada in 2013. She makes three main points. First, the decisions are mainly unanimous. The great majority also upholds the existing law, excepting the dramatic decision of the Court to strike down three sections of the Criminal Code in the Bedford challenge to Canada's criminal laws around the sale of sex. Second, two cases in which the Court was not unanimous, Quebec v. A and Manitoba Metis, engaged with critical and difficult constitutional questions, namely, the scope of section 15 equality protection and Canada's constitutionalized relationships with Indigenous peoples. The fissures revealed in these cases will almost certainly prove significant in the future. Finally, 2013 was an unusual year in which the Supreme Court became embroiled in some dramatic and unprecedented tussles with the elected government, over Prime Minister Harper's attempt to appoint Mr. Justice Marc Nadon to the Supreme Court. These disputes continued and expanded through the early part of 2014 and Canadians were faced with the spectacle of the Prime Minister's Office casting aspersions on the ethics of the Chief Justice of the Supreme Court. The author suggests that the aftermath of 2013 might be a new era in the relationship between our highest court and our federal government, one that might even knock the dust off section 33 of the Charter.