scholarly journals Compelling Freedom on Campus: A Free Speech Paradox

2020 ◽  
Vol 29 (2) ◽  
pp. 5-18
Author(s):  
Jamie Cameron*
Keyword(s):  
Free Speech ◽  
Working Group ◽  
Religious Freedom ◽  
Law School ◽  
Professor Emeritus ◽  
Supreme Court Of Canada ◽  
Special Issue ◽  
Indirect Control ◽  
Course Of Action ◽  
The Supreme Court

In 1985, it was largely unknown how the Supreme Court of Canada would respond to the Charter.1 At first glance, a drugstore’s right to be open for business on Sunday, selling groceries, plastic cups, and a bicycle lock, seemed an unlikely source of inspiration for the Court’s first pronouncement on the essence of freedom. Perhaps unexpectedly, the justices enforced the entitlement, finding that a Sunday closing law compelling a corporation to comply with the Christian Sabbath infringed section 2(a)’s guarantee of religious freedom.2 In doing so, R v Big M Drug Mart defined freedom as “the absence of coercion or constraint,” stating without equivocation that no one who is compelled “to a course of action or inaction” is “truly free”.3 In Justice Dickson’s considered view, coercion includes “blatant forms of compulsion”, such as “direct commands to act or refrain from acting on pain of sanctions”, as well as forms of indirect control.4 In plain and unmistakeable terms, Big M promised that, under the Charter, “no one is to be forced to act in a way contrary to his beliefs or conscience”.5   * Professor Emeritus, Osgoode Hall Law School. I thank Kate Bezanson and Alison Braley-Rattai for includingme in this special issue of Constitutional Forum, and am grateful to Kate Bezanson for her comments onan earlier draft. I also thank Ryan Ng (JD 2021) for his valuable research assistance in the preparation ofthis paper. Finally, I note that I was a member of York University’s Free Speech Working Group in fall 2018.This paper does not in any way express the views of York University or the Working Group, which has longsince disbanded. 1Canadian Charter of Rights and Freedoms, s 2(a), Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11 [Charter].2R v Big M Drug Mart, [1985] 1 SCR 295, 18 DLR (4th) 321 [Big M].3Ibid at 336.4Ibid.5 Ibid at 337.

Appointments to the Supreme Court of Canada

2018 ◽  
pp. 231-241
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Law School ◽  
Supreme Court Of Canada ◽  
Judicial Appointments ◽  
Canadian Experience ◽  
The Supreme Court

This essay traces the genesis of the Supreme Court of Canada under the Supreme Court Act of 1875, and the appointment procedure as described in it. The essay argues that the widening of the pool, where consultation for judicial appointments is made, has resulted in the appointment of persons with diverse credentials. The author describes how a reformed procedure for appointments involves the Prime Minister and the Minister of Justice consulting various Chief Justices, law school deans, and provincial justice ministers to solicit names of potential appointees. The Canadian experience demonstrates variations in appointment mechanisms for broad-based consultation even in the absence of a commission model. The author, however, rues that most innovations in the appointments process have been short-lived, with a general shift to a more secretive process for appointments.

Is Religious Freedom Impossible in Canada?

2010 ◽  
Vol 8 (2) ◽  
pp. 266-284 ◽  
Author(s):  
Lori G. Beaman
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Public Discourse ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Roman Catholicism ◽  
Canadian Law ◽  
The Supreme Court ◽  
Nuanced Understanding ◽  
Point Of Departure

The idea of religious freedom is not new in Canadian law or wider public discourse, although it has taken on a life of its own in the post- Charter era (1982 onward) and certainly in the last several years. As the courts wade more fully into the swirling abyss that is religion they find themselves struggling with the issues that preoccupy scholars of religion (and for which they have found no conclusive answer): what is “religion” and how can it be defined in a manner that is inclusive and meaningful? This article takes as its point of departure the provocative and compelling argument made by Winnifred Sullivan in her book, The Impossibility of Religious Freedom (2005), that religious freedom as a legal promise is untenable. In this article I argue that while plausible and convincing in the context of the United States, Sullivan’s thesis may be less applicable in Canada for three key reasons. First, the embeddedness of Roman Catholicism in Canadian social structure has resulted in a textured and nuanced understanding of religion, or, at the very least, a recognition that religion is in some measure a multifaceted notion. Secondly, the recognition of group rights, however defined, means that there is a space created for alternative religious discourses, in part because of the constitutional recognition of multiculturalism. Thirdly, the recent turn by the Supreme Court of Canada to an understanding of the subjectivity of religious freedom strengthens the idea that religion must be conceptualized in relation to the ways in which individuals understand and practice it in their day to day lives.

Pluralism, Autonomy and Resistance: A Canadian Perspective on Resolving Conflicts between Freedom of Religion and lgbtq Rights

2017 ◽  
Vol 12 (1) ◽  
pp. 1-37
Author(s):  
Diana Ginn ◽  
Kevin Kindred
Keyword(s):  
Supreme Court ◽  
Law School ◽  
Fundamental Rights ◽  
Freedom Of Religion ◽  
Sexual Intimacy ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
Post Secondary ◽  
The Supreme Court ◽  
Fundamental Rights And Freedoms

Trinity Western University (twu), an evangelical post-secondary institution in Canada, has litigated against three provincial law societies who refused to accredit twu’s proposed law school because of a mandatory University Covenant that prohibits sexual intimacy outside of marriage ‘between one man and one woman’. Leave has been granted to appeal this matter to the Supreme Court of Canada. This litigation involves a conflict between constitutional rights: freedom of religion and lgbtq equality rights. The Supreme Court of Canada mandates a non-hierarchical approach to resolving such conflicts, aimed at ensuring constitutional rights and freedoms do not depend on majoritarian support. Balancing competing fundamental rights and freedoms must be done contextually, with a weighing of harms and benefits on each side. Despite strong moral and theological objections to twu’s stance on same-sex relationships, the authors argue that, in this instance the balancing of harms and benefits weighs in favour of freedom of religion.

Google Inc. v. Equustek Solutions Inc.

2018 ◽  
Vol 112 (4) ◽  
pp. 727-733 ◽  
Author(s):  
Jennifer Daskal
Keyword(s):  
Information Technology ◽  
Supreme Court ◽  
Free Speech ◽  
Entry Point ◽  
Supreme Court Of Canada ◽  
Trade Secrets ◽  
The Supreme Court ◽  
A Company ◽  
Do So

In Google v. Equustek, the Supreme Court of Canada ordered Google to delist all websites used by Datalink, a company that stole trade secrets from Equustek, a Canada-based information technology company. Google had agreed to do so in part, but with respect to searches that originated from google.ca only, the default browser for those in Canada. Equustek however, argued the takedowns needed to be global in order to be effective. It thus sought an injunction ordering Google to delist the allegedly infringing websites from all of Google's search engines—whether accessed from google.ca, google.com, or any other entry point. Google objected. The Canadian Supreme Court, along with the two lower Canadian courts that considered the issue, sided with Equustek (para. 54). The ruling sets up a potential showdown between Canadian and U.S. law and raises critically important questions about the appropriate geographic and substantive scope of takedown orders, the future of free speech online, and the role of intermediaries such as Google in preventing economic and other harms.

scholarly journals Building a Law of Human Rights: Roncarelli v. Duplessis in Canadian Constitutional Culture

2011 ◽  
Vol 55 (3) ◽  
pp. 437-460
Author(s):  
Eric M. Adams
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Intellectual History ◽  
Law School ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
The Supreme Court ◽  
Constitutional Culture ◽  
History Of

This article reveals how audiences, especially in anglophone Canada, initially received and interpreted Roncarelli v. Duplessis as a case, above all, about human rights. Ignoring the judgment’s myriad complexities, commentators eagerly situated the case within the Supreme Court of Canada’s “implied bill of rights” jurisprudence then taking shape. Part of the reason for the emphasis on Roncarelli’s rights can be traced to the manner in which Frank Scott and Louis Stein argued the case, and the language of rights employed by Justice Ivan Rand’s iconic judgment. But Roncarelli’s meaning also took shape in press accounts and editorials, radio broadcasts, case comments, and law school lectures. Exploring these often-neglected sources, this article exposes the role of constitutional culture in creating jurisprudential meaning. In turn, it also calls for greater recognition of the pre-Charter Supreme Court of Canada in contributing to Canada’s intellectual history of rights.

scholarly journals Comment on Fraser v Canada (AG): The More Things Change

2021 ◽  
Vol 30 (2) ◽  
pp. 85-96
Author(s):  
Richard Moon
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Academic Career ◽  
Attorney General ◽  
Supreme Court Of Canada ◽  
Special Issue ◽  
Canadian Charter ◽  
Equality Rights ◽  
The Supreme Court

Very early in my academic career I wrote two pieces about section 15.1 The first was written in 1987, before the Supreme Court of Canada had heard any section 15 cases,2 and the second in 1989 was a comment on Andrews v Law Society of British Columbia, the first of the Court’s section 15 decisions.3 When I re-read these pieces recently it struck me that with a few minor updates they could be read as comments on the Court’s recent decision in Fraser v Canada(Attorney General). 4 The same issues and tensions that were there at the beginning of section 15 are still there. They are built into the concept of constructive/effects discrimination and are not about to disappear. Shamelessly, I have reconstituted these two earlier pieces into a comment, of sorts, on the Fraser case. Other contributors in this special issue of the Constitutional Forum have set out the facts of the Fraser case and so I have not done so here. 1 Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Richard Moon, “Discrimination and Its Justification: Coping with Equality Rights under the Charter” (1988) 26:4 Osgoode Hall LJ 673.3 Richard Moon, “A Discrete and Insular Right to Equality: Comment on Andrews v. Law Society of British Columbia”(1989) 21:3 Ottawa L Rev 563.4 2020 SCC 28 [Fraser].

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

The ENIGMA Brain Injury Working Group: Approach, Challenges, and Potential Benefits

2019 ◽  
Author(s):  
Elisabeth A. Wilde ◽  
Emily L. Dennis ◽  
David F Tate
Keyword(s):  
Brain Injury ◽  
Working Group ◽  
Meta Analysis ◽  
Special Issue ◽  
Group Approach ◽  
Challenges And Opportunities ◽  
Brain Structure And Function ◽  
Potential Benefits ◽  
And Function ◽  
Neuroimaging Genetics

The Enhancing NeuroImaging Genetics through Meta-Analysis (ENIGMA) consortium brings together researchers from around the world to try to identify the genetic underpinnings of brain structure and function, along with robust, generalizable effects of neurological and psychiatric disorders. The recently-formed ENIGMA Brain Injury working group includes 8 subgroups, based largely on injury mechanism and patient population. This introduction to the special issue summarizes the history, organization, and objectives of ENIGMA Brain Injury, and includes a discussion of strategies, challenges, opportunities and goals common across 6 of the subgroups under the umbrella of ENIGMA Brain Injury. The following articles in this special issue, including 6 articles from different subgroups, will detail the challenges and opportunities specific to each subgroup.

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