The Houdini Gambit

Jeffrey MacIntosh
Wednesday, November 24, 2010

This commentary by Prof. Jeffrey MacIntosh was first published in the Financial Post on November 23, 2010.

Do the feds have the constitutional jurisdiction to create a national securities regulator? Not surprisingly, the federal government thinks so. Also not surprisingly, the government of Quebec does not. Quebec has referred the matter to the Quebec Court of Appeal for a decision (just as the feds have sent a reference to the Supreme Court of Canada, but the Quebec court gets the first kick at the can).

Ottawa’s legal case, in a recently filed factum with the Quebec Court of Appeal, totters on the brink of schizophrenia. At the outset, the factum invites the court to conclude that the issue of constitutionality “does not involve a performance assessment of the existing 13 provincial and territorial regulators.” But, mirabile dictu, much of the balance of the argument is sedulously devoted to demonstrating the manifest superiority of federal legislation. Go figure.

Minister Kenney’s Ban on Face Coverings is Ultra Vires

Audrey Macklin
Friday, February 17, 2012

Not only is Minister Kenney’s ban on face coverings a gratuitous insult to Muslim women, it’s ultra vires.

In the wake of all the publicity about the Minister of Immigration’s decree that no one shall be allowed to go through the citizenship ceremony with her face covered, I thought I'd find out how the ban on face coverings was authorized in law. It appears that the ban is buried in the Operations Manual on citizenship ceremonies.  The Operations Manual provides guidance to citizenship bureaucrats (including Citizenship Judges) about how to interpret and apply the law -- the Citizenship Act and the Citizenship Regulations.  Since they are only guidelines, they do not have the force of law, and are invalid to the extent that they contradict the statute or the regulations.

You can find the citizenship manual here (PDF) (see s. 6.5). The manual contains an elaborate set of instructions about how citizenship officials shall respond if a woman is both uppity and oppressed enough to show up with her face covered.

Foreign Affairs: A Delicate Balancing Act

Ed Morgan
Wednesday, April 18, 2012

This article by Prof. Ed Morgan was originally published in The Lawyers Weekly, April 13, 2012.

When it comes to conducting foreign affairs, it is well established that the constitution puts the weight of responsibility on the federal government. But in recent years, the courts have deviated from that rule as often as they have invoked it.

In the Afghan prisoners case, the Federal Court of Canada explained that the government owes no constitutional duty when, after questioning, the military turns detainees over to a foreign government. The judgment presumed that Canadian forces require flexibility, and enjoy the discretion to deviate from domestic rules when they deal with an allied state and prisoners of war.

Constitutional Roundtable (Andrew Geddis)

David Asper Centre for Constitutional Rights
UNIVERSITY OF TORONTO

presents

Andrew Geddis
University of Otago Faculty of Law

Title:  tba

Wednesday, October 24, 2012
12:30 - 2:00
Classroom B (FLB), Flavelle House
78 Queen's Park

JD student Louis Century writes in Law Times - "Forcing judges to judge old law erodes democracy"

Monday, July 30, 2012

JD student Louis Century, a summer law student with the David Asper Centre for Constitutional Rights, has written a commentary in the "Speaker's Corner" section of the Law Times, "Forcing judges to judge old law erodes democracy," (July 30, 2012).

Read the full commentary on the Law Times website.

Copyright Taxation Without Representation

Ariel Katz
Thursday, June 21, 2012

The Copyright Board of Canada and that various tariffs that it certifies rarely attract media attention. But a tariff recently certified received coverage by most major media outlets. That tariff, mandating payments for playing recorded music in weddings and other events for the years 2008-2012, will be collected by Re:Sound, a private organization representing record companies and performing musicians. If the events include dancing, the fee is double. This unusual media attention, often describing the fees as a “wedding tax” or “dancing tax”, is not surprising because it reflects how undemocratic some aspects of Canada’s copyright system have become. If that is not enough, Re:Sound now contemplates a threefold increase in the “dancing tax” according to its newly proposed tariff for the years 2013-2015.

Prof. Ed Morgan - "The difference between lunchtime prayer and a Jesus T-shirt"

Wednesday, May 9, 2012

In a commentary in The Globe and Mail, Prof. Ed Morgan analyzes the constitutional issues around different forms of religious expression in public schools ("The difference between lunchtime prayer and a Jesus T-shirt," May 9, 2012).

Read the full commentary on The Globe and Mail website.

Read the latest Asper Centre "Outlook" newsletter

Monday, April 30, 2012

The David Asper Centre for Constitutional Rights has published the Spring 2012 issue of its newlsetter Asper Centre Outlook. The new issue features an interview with Joseph Arvay, the inaugural Constitutional-Litigator-in-Residence, case comments, and an overview of constitutional cases before the Supreme Court of Canada during this 30th anniversary year of the Charter.

Read the newsletter (PDF).

Joseph Arvay, QC, selected inaugural Constitutional-Litigator-in-Residence for the Asper Centre

Tuesday, April 3, 2012

(April 3, 2012) The Faculty of Law's David Asper Centre for Constitutional Rights is pleased to announce that distinguished civil rights and constitutional advocate Joseph J. Arvay, QC, will be the Asper Centre's inaugural Constitutional-Litigator-in-Residence in fall 2012.

The Difference Between Lunchtime Prayer and a Jesus T-shirt

Ed Morgan
Wednesday, May 9, 2012

This commentary was first published by Prof. Ed Morgan in The Globe and Mail on May 9, 2012.

A public school in Toronto thinks a clergyman can be invited to conduct Islamic prayers at lunchtime on school grounds. As a school trustee explains it, “What we’re doing is what we should be doing as a school board and that is accommodating students’ needs no matter what their religion is.”

A public school in Chester Basin, N.S., thinks a student can be prohibited from wearing a T-shirt with a Christian message on school grounds. As school trustees explain it, “It is expected that students will not wear clothing with messages that may offend others’ beliefs, race, religion, culture or lifestyle.”

Does Canadian law really get such a failing grade?

Whether religious expression is permitted in schools turns on the meaning given to “freedom of religion” and “freedom of expression.” The confusion over this question calls for a review class on the Canadian Charter of Rights and Freedoms.

Beginning in the mid-1980s, the courts determined that public schools cannot teach religion in a doctrinal way. While they can, and often do, offer history and social-studies classes that survey world religions, the mandatory separation of church and state prohibits them from teaching religion as it is taught to adherents of that religion – i.e., as a matter of belief rather than general knowledge.

Pages