Law, Liberty and the Canadian Constitution: A Freedom-Centred View
This is a collection of papers developed out of the Canadian Constitution Foundation (CCF)'s Annual Conference 2015. The papers take a critical review of recent legal developments regarding a number of controversial issues of national concern such as assisted suicide, mandatory minimum sentences, Senate reform and the proportionality-based approach that underlies the analysis of Charter-rights limitations.
- Captures the struggles that lawyers, judges, politicians and scholars face in seeking to interpret the Charter and the Constitution purposively in the context of various hotly debated national issues
- Offers insights and perspectives from leading constitutional law practitioners and scholars on key issues of national interest
The Collection of Papers
Checking the Court: Justifying Parliament's Role in Constitutional Interpretation
This paper challenges the commonplace assumption that the Supreme Court of Canada is the exclusive and authoritative interpreter of the Canadian Constitution, and examines scenarios where Parliamentary interventions may be justified.
The Theory of Law "As Claim" and the Inquiry into the Sources of Law: Bruno Leoni in Prospect
This paper presents a systematic analysis of the theory of law "as claim" through a critical review of Bruno Leoni's work.
Parliamentary Restrictions on Judicial Discretion in Sentencing: A Defence of Mandatory Minimum Sentences
Lincoln Caylor and Gannon G. Beaulne
This paper traces the history of judicial discretion in sentencing in Canada and examines the creative ways in which some Canadian judges have sought to circumvent Parliament's attempts to use mandatory sentencing tools. An outline is offered on a defence of mandatory minimums and other legislated restrictions on judicial discretion in sentencing at a policy level.
Canadian Proportionality Analysis: 5 ½ Myths
The Canadian approach to analyzing Charter-rights limitations – the Oakes test and its proportionality-based approach – is subject to a number of myths. This paper seeks to expose and challenge these myths and to show the highly problematic character of Canadian proportionality analysis.
Lock, Stock, and Barrel v. Ontario: The Montagues' Story
This paper challenges the intended purposes of civil forfeiture laws in Canada and contends that those laws most often function as a supplement or alternative to criminal law, thus resulting in a mesh between the two.
Leroux v. CRA: An Unprecedented Tax Case Establishing Duty of Care
This paper critiques the outcome of the B.C. Supreme Court's unprecedented ruling in Leroux v. Canada Revenue Agency in which Canada Revenue Agency was found to have violated its duty of care by acting negligently to a taxpayer, while the taxpayer's interim motion for Charter relief was struck down.
Lethal Discrimination: A Case against Legalizing Assisted Suicide in Canada
This paper argues that legalizing assisted suicide fundamentally undermines life and liberty because permitting some people to kill members of a particular class, even with their consent, undermines more fundamental rights, e.g., the right to life of other members of that class.
No Statecraft, Questionable Jurisprudence: How the Supreme Court Tried to Kill Senate Reform
This paper examines the political ramifications of the Supreme Court of Canada's declaration in Senate Reform Reference (2014) that the Harper Government's proposed statutory reforms to the Canadian Senate were unconstitutional.
Who should read this book
- Law school professors, in particular those teaching constitutional law, for research purposes
- Constitutional law practitioners to formulate their arguments as they relate to legal rights
- Policy advisers with the government to assist with legislative drafting
Table of contents
Checking the Court: Justifying Parliament's Role in Constitutional Interpretation (by Dennis Baker)
The Theory of Law "As Claim" and the Inquiry into the Sources of Law: Bruno Leoni in Prospect (by Daniele Bertolini)
Parliamentary Restrictions on Judicial Discretion in Sentencing: A Defence of Mandatory Minimum Sentences (by Lincoln Caylor and Gannon G. Beaulne)
Canadian Proportionality Analysis: 5 ½ Myths (by Dwight Newman)
Lock, Stock, and Barrel v. Ontario: The Montagues' Story (by Derek From)
Leroux v. CRA: An Unprecedented Tax Case Establishing Duty of Care (by Karen Selick)
Lethal Discrimination: A Case against Legalizing Assisted Suicide in Canada (by André Schutten)
No Statecraft, Questionable Jurisprudence: How the Supreme Court Tried to Kill Senate Reform (by Ted Morton)