Revue nationale de droit constitutionnel最新文献

{"title":"Travelling in Constitutional Circles: The Paradox of Tribunal Independence","authors":"A. Chaplin","doi":"10.2139/ssrn.2962591","DOIUrl":"https://doi.org/10.2139/ssrn.2962591","url":null,"abstract":"Since the Supreme Court of Canada’s decision in Matsqui Indian Band courts called upon to assess the fairness of administrative tribunal procedures, or their compliance with fundamental justice, have had to determine whether the tribunal is sufficiently “independent”. The test to be applied for this purpose is derived from that which is employed to preserve the independence of judges: security of tenure, financial security and administrative independence. These factors are applied to administrative tribunals on a spectrum, depending on the nature of the tribunal, its procedures and the issues with which the tribunal deals. However, the point of the test for judicial independence is to determine if the judges are independent from the executive branch of government. We know from the Supreme Court’s decision in Ocean Port Hotel that administrative tribunals form part of the executive branch. Applying this analysis to such tribunals therefore produces a paradox, one that is not overcome by its “spectrum” application. This paradox becomes evident if we follow the four circles of reasoning that courts travel when faced with an allegation that a particular tribunal needs to be independent like a court: the common law circle, the constitutional constraints circle, the quasi-constitutional constraints circle and the unwritten constitutional principles circle. In all four cases the court must begin with the proposition that the tribunal at issue is part of the executive, not the judicial, branch of government but must then go on to apply factors that determine whether the tribunal is sufficiently independent of the executive. This circular line of reasoning, while it has some advantages, produces problems that resonate in both administrative and constitutional law. Possibly as a result the test, while referred to, is seldom actually applied by courts. It is argued here that there is an alternative to assessing an administrative tribunal’s “independence” from its home branch of government. Such an approach would focus, not on independence from the executive branch as a whole, but on whether the tribunal can be said to be free of dependence on the government entity who is actually a party to the tribunal’s proceedings. The aim would be to achieve fair tribunal procedures while preserving the democratic accountability required for a portion of the executive branch, thereby advancing both fundamental justice and public confidence in tribunal decision-making.","PeriodicalId":264071,"journal":{"name":"Revue nationale de droit constitutionnel","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128706380","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Aboriginal Title in Recent Supreme Court of Canada Jurisprudence: What Remains of Radical Crown Title?","authors":"Ryan Beaton","doi":"10.2139/SSRN.2535051","DOIUrl":"https://doi.org/10.2139/SSRN.2535051","url":null,"abstract":"Three elements in the Supreme Court of Canada's current doctrine of Aboriginal title raise the question whether there is any meaningful content left to the notion of underlying, or radical, Crown title. The first element is the sui generis legal foundation of Aboriginal title in the Aboriginal use and occupation of land prior to the Crown's assertion of sovereignty. The second is the constitutional protection of Aboriginal title, including the potential requirement of full Aboriginal consent to certain Crown proposals. The final element is the Court's stated focus on reconciliation as the overarching goal of modern Aboriginal law, and on negotiation as the preferred means of achieving it. I argue that the first two elements have already in principle largely whittled down the doctrinal content of radical Crown title, while in practice its continued recognition creates the kind of imbalance at the negotiating table that undermines reconciliation. I suggest the Court should therefore consider alternatives to upholding radical Crown title to Aboriginal land.","PeriodicalId":264071,"journal":{"name":"Revue nationale de droit constitutionnel","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132241493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"True Allegiance: The Citizenship Oath and the Charter","authors":"L. Sirota","doi":"10.2139/SSRN.2433711","DOIUrl":"https://doi.org/10.2139/SSRN.2433711","url":null,"abstract":"Would-be Canadian citizens are required to swear an oath, which includes a promise of “true allegiance” to the Queen. For some, swearing allegiance to a what they regard as a person embodying inequality, colonialism, and oppression goes against their deeply-held republican or egalitarian values. However, Canadian courts have so far rejected Charter challenges to the citizenship oath.This article argues that the oath is, nevertheless, unconstitutional, albeit on a basis different from that mostly canvassed by the courts which have considered it. Rather than an infringement of freedom of expression, the citizenship oath should be analyzed as a violation of the freedom of conscience of those required to take it. Like most oaths, it is an attempt not only to impress the importance of the obligation it imposes on those who take it, but also to enlist their sense of right and wrong ― that is to say, their conscience ― in the service of the state’s objectives. Because the citizenship oath is a violation of freedom of conscience, it is irrelevant that those who object to it may be misunderstanding its true significance, or the real nature of “the Queen” in Canadian law. As in freedom of religion cases, courts must recognize their subjective conception of their conscientious obligations, and the extent to which taking the oath conflicts with them. With this in mind, it becomes apparent that the reasons advanced to justify the oath under s. 1 of the Charter cannot do so.","PeriodicalId":264071,"journal":{"name":"Revue nationale de droit constitutionnel","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132645056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Dismantling Regulatory Structures: Canada's Long-Gun Registry as Case Study","authors":"P. Daly","doi":"10.2139/SSRN.2291165","DOIUrl":"https://doi.org/10.2139/SSRN.2291165","url":null,"abstract":"English abstract: The story of the creation and destruction of Canada’s long-gun registry tells us much about the legal framework for deregulation, a topic which has received little consideration. The abolition of the registry and the destruction of the data created during its operation have led to an important court challenge, two very interesting judgments and, potentially, a hearing before the Supreme Court of Canada. The issues canvassed will be of interest not only to Canadian public lawyers, but all those interested in administrative and constitutional law in the common law world, especially those jurisdictions with a federal structure.I begin with a brief overview of gun control in Canada, including a description of the basic regulatory structure and the legal challenges it has withstood. I move on to consider the long-gun registry established in the 1990s and, again, the legal challenge it withstood. I turn then to the steps taken to dismantle the long-gun registry before considering the two key legal issues that arise: One, the scope of the power to repeal legislation; Two, the means of dismantling a regulatory structure. I conclude with some thoughts on the application of the principles of federalism.The dismantling of Canada’s long-gun registry is an interesting case study on deregulation, especially deregulation effected in a federation. Political concerns are never far from the surface and they had a great deal of influence on the means of deregulation chosen by Parliament. The legality of the means employed, however, is questionable. I should not hide my ultimate conclusion: the attempt to destroy the long-gun registry data is unconstitutional; the constitutionally appropriate action would be to transfer the remaining data to the provinces.French abstract: L’histoire de la creation et de la destruction du registre des armes d’epaule au Canada en dit long sur le cadre juridique de la dereglementation, un sujet qui a recu peu d’attention. L’abolition du registre et la destruction des donnees creees durant son exploitation ont mene a une contestation judiciaire importante, deux jugements tres interessants et, potentiellement, une audience devant la Cour supreme du Canada. Les questions examinees seront d’interet non seulement pour les avocats canadiens du secteur public, mais pour tous ceux interesses au droit administratif et constitutionnel dans le monde de la common law, en particulier les territoires avec une structure federale.L’auteur commence par un apercu du controle des armes a feu au Canada, notamment une description de la structure reglementaire de base et les defis juridiques auxquels il a ete expose. Il poursuit avec l’examen du registre des armes d’epaule etabli dans les annees 1990 et, `a nouveau, le defi juridique auquel il a ete expose. Il passe ensuite aux mesures prises pour demanteler le registre des armes d’epaule avant de considerer les deux questions juridiques qui se posent: la premiere sur la portee du pouvoir ","PeriodicalId":264071,"journal":{"name":"Revue nationale de droit constitutionnel","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131238442","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Adjudication of Social and Economic Rights in South Africa: Beyond the Rhetoric of Illegitimacy and Excessive Complexity","authors":"D. Robitaille","doi":"10.2139/SSRN.1593024","DOIUrl":"https://doi.org/10.2139/SSRN.1593024","url":null,"abstract":"Except for the minority language educational rights guaranteed by section 23, the Canadian Charter of Rights and Freedoms does not recognize any social and economic rights. However, despite that exclusion, many academics, lawyers and other proponents of human rights have challenged socioeconomic inequities in courts. Sections 7 and 15 of the Charter, which respectively protects security and equality rights, have served as tools for the indirect recognition of fundamental social and economic rights, such as the right to health and the right to an adequate standard of living. Unfortunately, Canadian courts have been reluctant to recognize that sections 7 and 15 could be extended to the socioeconomic context and to interpret it as to give rise to positive obligations on the part of the State. Courts generally see social and economic rights as illegitimate based on the pressure exerted by these rights on the State budget. Judges also consider themselves incompetent to adjudicate complex socioeconomic issues. Social and economic rights are then considered as unjustifiable or unenforceable. The South African Constitution, as opposed to the Canadian Charter, protects some social and economic rights that are directly enforceable by courts. The South African Constitutional Court has developed an innovative and promising approach to the adjudication of those rights. In the Grootboom case (2000), the Court found that social and economic rights are justifiable and imposed a general obligation on the State, subject to the availability of resources, to take reasonable and adequate measures to fulfill the basic needs of South African citizens. The Court also found in the Treatment Action Campaign case (2002) that courts have a broad power to enforce social and economic rights if the State fails to do so. Courts can limit the remedy to a declaration of rights or, in appropriate circumstances, may order the State, through a mandatory relief or an injunction, to take positive steps to fulfill these rights and oblige it to report back to the court. By formulating a general obligation of reasonableness and in recognizing to the State the deference needed to choose the means to realize social and economic rights, the South African Constitutional Court approach reaches a balance between the different but essential roles of the courts and the legislator.","PeriodicalId":264071,"journal":{"name":"Revue nationale de droit constitutionnel","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115181789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada","authors":"M. Bailey, B. Baines, Bita Amani, A. Kaufman","doi":"10.2139/SSRN.1023896","DOIUrl":"https://doi.org/10.2139/SSRN.1023896","url":null,"abstract":"This report assesses Canada's laws on the recognition of valid foreign polygamous marriages, arguing that the principle of \"universality of status\" should be given effect. A valid foreign polygamous marriage should be recognized and given effect to the extent that recognition does not violate Canada's essential \"public policy.\" There is a strong association between polygamy and gender inequality, and a fundamental concern is whether either recognizing or failing to recognize valid foreign polygamous marriages would harm women. This report takes the view that the rights of women in valid foreign polygamous marriages should be protected by extending recognition to those marriages. It is the position of this report that recognition would not imply endorsement of polygamy or the gender inequality associated with the practice.Recognition of valid foreign polygamous marriages raises the issue of how Canadian law should respond to \"plural unions\" entered into within Canada in some religious communities. The law does not consider such unions to be marriages. They are legal nullities. No civil legal consequences result merely from the fact that the parties went through a religious ceremony. There are, however, criminal consequences. Section 293 of the Criminal Code criminalizes polygamy and by its terms applies both to those who enter into a plural union within Canada and to parties to a valid foreign polygamous marriage who \"practise\" polygamy within Canada. This report examines the history, efficacy and constitutionality of s. 293 of the Criminal Code and recommends that this provision be repealed.Finally, this report considers arguments for and against permitting polygamous marriages to take place under Canada's domestic laws, specifically, the constitutional arguments that could be made. The report recommends that Canada prepare for a constitutional challenge to the limitation of marriage to two persons.","PeriodicalId":264071,"journal":{"name":"Revue nationale de droit constitutionnel","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128029525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}