scholarly journals Case Comment: Canada (Attorney General) v PHS Community Services Society

2011 ◽  
Vol 20 (2) ◽  
pp. 2011 ◽  
Author(s):  
Rahool P Agarwal
Keyword(s):  
Health Program ◽  
Attorney General ◽  
Community Services ◽  
Supreme Court Of Canada ◽  
East Side ◽  
The Supreme Court ◽  
Supervised Injection ◽  
Constitutional Jurisprudence ◽  
The Relationship ◽  
Addiction Drug

In September of this year, the Supreme Court of Canada released its decision in Canada (Attorney General) v PHS Community Services Society (“PHS Community Services Society”).[1] PHS Community Services Society is undoubtedly a landmark decision. Most importantly, the Court ordered the continued operation of Insite, North America’s only supervised injection site, and a health program that has proven to be overwhelmingly effective in addressing addiction drug use in Vancouver’s Downtown East Side (the “DTES”). But the decision is also critically important as part of the Supreme Court’s body of constitutional jurisprudence. In this case comment, I review the Court’s decision, and discuss three important issues raised by the Court’s analysis: (a) the availability of ministerial discretion as an “antidote” for an otherwise unconstitutional law; (b) what insight the decision may provide with respect to the relationship between the Court and Parliament; and (c) PHS Community Services Society’s utility as a precedent for future supervised injection sites. [1] Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] SCJ no 44 (QL) [PHS (SCC)].

The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria

ICL Journal ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Kerstin Braun
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Constitutional Court ◽  
Supreme Court Of Canada ◽  
Assisted Dying ◽  
Constitutional Courts ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Right ◽  
Constitutional Jurisprudence

Abstract Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.

scholarly journals Religious Diversity, Education, and the “Crisis” in State Neutrality

2013 ◽  
Vol 29 (01) ◽  
pp. 103-122 ◽  
Author(s):  
Benjamin L. Berger
Keyword(s):  
Public Education ◽  
Religious Diversity ◽  
Diversity Education ◽  
Supreme Court Of Canada ◽  
Religious Difference ◽  
State Neutrality ◽  
Politics And Religion ◽  
Religion And Law ◽  
The Supreme Court ◽  
The Relationship

Abstract Education—and particularly public education—has become a crucible for the relationship between state and religious diversity, a principal site for contemporary debates about the meaning of secularism and the management of religious difference. This is so across a variety of national traditions, and despite wide differences in the historical and “emotional inheritances” surrounding the configuration of law, politics, and religion. Through an exploration of Hannah Arendt’s thought about responsibility and freedom in education, this article works towards a better understanding of why education is such a crucial and fraught field in the modern encounter between religion and law. The article turns to the recent jurisprudence of the Supreme Court of Canada to draw out the implications of these ideas, arriving ultimately at a claim about the nature and limits of the concept of state neutrality.

scholarly journals The Freedom of Association Mess: How We Got into It and How We Can Get out of It

2009 ◽  
Vol 54 (1) ◽  
pp. 177-212 ◽  
Author(s):  
Brian Langille
Keyword(s):  
Constitutional Law ◽  
Supreme Court Of Canada ◽  
Freedom Of Association ◽  
Labour Law ◽  
Labour Relations ◽  
State Action ◽  
Starting Point ◽  
The Supreme Court ◽  
The Impact ◽  
The Relationship

Abstract Canadian constitutional law regarding freedom of association for workers is a mess. The jurisprudence to date has taken an approach to state action and positive obligations to legislate which is inconsistent with section 15, and has failed to articulate the relationship between the abstract statement of basic rights or freedoms and the detailed statutes and regulations that instantiate and enforce them. This paper focuses on the impact of the recent decision of the Supreme Court of Canada in BC Health. The author argues that this case misunderstood Canada’s labour law history, international labour law obligations, “Charter values”, and the distinction between “freedoms” and “rights”. This paper argues that by using labour relations statutes as a starting point and applying the constitutional idea of equality, courts can protect freedom of association for workers and find a way out of the mess we are in.

scholarly journals Constitutional Judges and Secession. Lessons from Canada … twenty years later

2017 ◽  
Vol 9 (3) ◽  
pp. E-105-E-132
Author(s):  
Irene Spigno
Keyword(s):  
Supreme Court ◽  
Minority Groups ◽  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
Constitutional Jurisprudence

Abstract In constitutional theory, the referendum is an instrument that allows for the expression of the popular will in government decisions and through which people are asked to vote directly on an issue or policy. Over the last decades, the referendum has been the instrument used by minority groups to claim their independence supported by popular will. This paper examines trends in constitutional jurisprudence on the issue of independence referendums. The birth of this constitutional trend can be found in the 1998 decision by the Supreme Court of Canada in the Reference Re Secession of Quebec. The principles developed therein have been further explored in two recent cases, issued by the Italian Constitutional), and by the Spanish Constitutional Tribunal in the latest decision of the Catalonia saga (Judgment no. 114/2017).

Part V Rights and Freedoms, B Rights and Freedoms under the Charter, Ch.39 Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15

2017 ◽  
Author(s):  
Lawrence Sonia
Keyword(s):  
Supreme Court ◽  
Complete Separation ◽  
Supreme Court Of Canada ◽  
Government Action ◽  
Canadian Charter ◽  
Doctrinal Development ◽  
Substantive Equality ◽  
The Supreme Court ◽  
The Relationship

This chapter considers the effect of section 1, the “justification” section of the Canadian Charter, on the doctrinal development of section 15, the equality section. It begins by describing the development of the section 15 substantive equality analysis, including the claim of a conceptually complete separation from the section 1 analysis of state justification. The chapter then identifies some features of section 15 which suggest that this separation is less than complete, including the existence of section 15(2), and anxieties over constraining government action. The chapter then turns to three post-2001 cases in which the Supreme Court of Canada found discrimination under the Charter but then held that discrimination was “justified” through section 1, and asks what these cases might reveal about the symbolic significance of a finding of discrimination and the Court’s struggle with institutional competence concerns in equality claims.

The Charter of Rights and Freedoms: Undermining Parliamentary Sovereignty and Federalism

Federalism-E ◽  
2019 ◽  
Vol 20 (1) ◽  
pp. 57-65
Author(s):  
Joshua Nahmias
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Political Environment ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Public ◽  
Public Purse ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Core Concepts

This article explores the Canadian Charter of Rights and Freedoms and its role in altering two core concepts of Canadian democracy: parliamentary sovereignty and federalism. The author argues that the Charter has undermined these concepts through the empowerment of Canada's judiciary, namely the Supreme Court of Canada. The article explores ways in which the powers of parliament have been superseded by the courts, specifically through the establishment of "charter proofing," parliament's loss of power over the "public purse," and the erosion of the provinces' policy autonomy. Ultimately, the article seeks to demonstrate that the Charter has "legalized" Canadian politics to the extent that the judiciary unwieldy an unacceptable amount of power in Canada's political environment. Cases explored in the essay include Morgentaler v. the Queen (1988), Schachter v. Canada (1992), and Attorney-General of Québec v. Association of Québec Protestant School Boards (1984).

Deepening counter institutions: Property, lands, relations, and the economic future of the Tŝilhqot’in

2021 ◽  
pp. 026377582110634
Author(s):  
Anthony W Persaud
Keyword(s):  
First Nations ◽  
Private Property ◽  
Well Being ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Land Relations ◽  
Aboriginal Title ◽  
Cultural Ecological ◽  
Economic Future ◽  
The Relationship

The recognition of Aboriginal title by the Supreme Court of Canada in 2014 affirmed the existence and relevance of a Tŝilhqot’in legal order governing the relationship that Tŝilhqot’in people have with their lands, with each other, and with outsiders. The challenge now for the Tŝilhqot’in is to articulate and enact these laws in ways that respond to their modern socio-economic and cultural-ecological needs and goals without betraying their fundamental principles. Complicating this is a dominant narrative which rationalizes First Nations compliance with liberal institutions of British common law, property, and market-based economic growth as requirements for socio-economic improvements and well-being within First Nations communities. This article interrogates some of the logics and fundamental assumptions that underpin the arguments of liberal property rights enthusiasts, questioning their applicability to the values and aspirations of the Tŝilhqot’in people and First Nations broadly. The Tŝilhqot’in, empowered through title, at once resist liberal private property while at the same recognize the need for institutional developments in relation to lands, housing, and ‘ownership’. This indicates a need for new legal conceptualizations of property that are more comprehensively rooted in, and reflective of, Indigenous laws and land relations.

scholarly journals The Truth About Canadian Judicial Activism

2011 ◽  
Vol 15 (1, 2 & 3) ◽  
pp. 2006
Author(s):  
Sanjeev Anand
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
State Action ◽  
The People ◽  
The Supreme Court ◽  
Recent Conference ◽  
Elected Representatives ◽  
Societal Preferences

The topic of judicial activism in Canada generates considerable disagreement. At a recent conference, retired Supreme Court of Canada Justice John Major stated that “there is no such thing as judicial activism in Canada.”1 In 2001, speaking in his capacity as the Canadian Alliance’s Justice critic, the current federal Minister of Justice and Attorney General, Vic Toews, told Parliament that the Supreme Court has “engaged in a frenzy of constitutional experimentation that resulted in the judiciary substituting its legal and societal preferences for those made by the elected representatives of the people . . . [producing] legal and constitutional anarchy.”2 One prominent constitutional scholar fears that the debate on judicial activism in Canada has begun to produce excessive judicial deference that allows legislatures and officials to act without scrutiny by the judiciary concerning the effects of state action on vulnerable minorities.

scholarly journals The PHS Case and Federalism-Based Alternatives to Charter Activism

2013 ◽  
Vol 22 (1) ◽  
pp. 85
Author(s):  
Dwight Newman
Keyword(s):  
Injection Site ◽  
Supreme Court ◽  
Community Services ◽  
Recent Case ◽  
Supreme Court Of Canada ◽  
Federal Minister ◽  
Present Discussion ◽  
Downtown Eastside ◽  
The Supreme Court ◽  
Legal Consequences

In the recent case of Canada (AG) v PHS Community Services (PHS, often called the Insite Decision), the Supreme Court of Canada purported to offer a case-specific decision limited to Vancouver’s Insite injection facility. The decision saw the Court declare that the Federal Minister of Health could not decline to continue an exemption from narcotics provisions for the Insite Clinic, which provided an injection site for narcotics users in Downtown Eastside Vancouver. Despite the Court’s claim to want a case-specific decision, I argue in the present discussion that by basing their decision on section 7 of the Charter, rather than using the alternative federalism argument that was available, the Court adopted a more activist route with more disruptive future legal consequences.

Sign in / Sign up

Export Citation Format

Share Document