Notes of Cases Jurisprudence CONSTITUTIONAL LAW-REARRANGING THE ADMINISTRATION OF CRIMINAL JUSTIC... more Notes of Cases Jurisprudence CONSTITUTIONAL LAW-REARRANGING THE ADMINISTRATION OF CRIMINAL JUSTICE.-In C .N. Transportation' and Kripps Pharrnacy2 a majority of the Supreme Court of Canada decided that constitutional jurisdiction to supervise the conduct of criminal prosecutions belongs to the federal order of government. The purpose of this comment is to examine the principles enunciated by the majority in reaching this conclusion, and to consider the legal and political implications of their having done so .
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 ... more This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons.
Doctor Arbuthnot was not far short of the mark:'Law is a bottomless pit.'2 It is capabl... more Doctor Arbuthnot was not far short of the mark:'Law is a bottomless pit.'2 It is capable of accommodating all manner of philosophical insight, ideological choice, and hermeneutical possibility. In the three centuries following his observation, liberal theorists have railed ...
This article challenges the thesis of Peter W. Hogg, Allison A. Bushell Thornton, and Wade K. Wri... more This article challenges the thesis of Peter W. Hogg, Allison A. Bushell Thornton, and Wade K. Wright (put forth earlier in this issue) that the frequency of legislative responses to Charter decisions striking down laws, which they refer to as "Charter dialogue," provides evidence that Canada has a weaker form of. judicial review than is thought to exist in the United States. This article also critiques their claim that judicial review is justified by the idea that individuals have rights that cannot be taken away by an appeal to the general welfare'. The author maintains that this claim not only contradicts their previous arguments, but also undermines their position that Charter dialogue, insofar as it allows legislatures to reassert majoritarian objectives following adverse court decisions, is a good thing.
We welcome the opportunity to work with the Ministry pursuant to our common mandates to provide t... more We welcome the opportunity to work with the Ministry pursuant to our common mandates to provide the highest quality education, research, and community service to the citizens and communities of British Columbia. As Board Chair and President, we accept accountability for this plan and look forward to its implementation.
Those are my principles. I f you don't like them I have others. "-Groucho Marx * Dean and Associa... more Those are my principles. I f you don't like them I have others. "-Groucho Marx * Dean and Associate Professor, Faculty of Law, University of Victoria. I am indebted to Joel Bakan and Murray Rankin for their helpful comments and suggestions, and to Claudia Chender for her invaluable research assistance. Parts of this paper derive from Andrew Petter, "Rip Van Winkle in Charterland" in R. Bazowski, ed., The Charter at Twenty (McGill-Queen's University Press, forthcoming).
Commentary TAKING DIALOGUE THEORY MUCH TOO SERIOUSLY (OR PERHAPS CHARTER DIALOGUE ISN'T SUCH... more Commentary TAKING DIALOGUE THEORY MUCH TOO SERIOUSLY (OR PERHAPS CHARTER DIALOGUE ISN'T SUCH A GOOD THING AFTER ALL)® Andrew Petter" This article challenges the thesis of Peter W. Hogg, Cet article interpelle la thèse de Peter W. Hogg, Allison A. ...
TREATY-POWER, AND MORE ON RULES AND OBITER DICTA.-The recent decision of the Supreme Court of Can... more TREATY-POWER, AND MORE ON RULES AND OBITER DICTA.-The recent decision of the Supreme Court of Canada in the case of Schneider v . The Queen, 1 is of interest from a number of perspectives . The decision contains an important exposition of provincial legislative jurisdiction in respect of the prevention and mandatory treatment of disease. In the same case, 2 we learn that the Chief Justice disassociates himself from the view of four colleagues, expressed in his absence, in Hauser v. The Queen that the Narcotic Control Act is an exercice of the peace order and good government power rather than the criminal law power . Chief Justice Laskin suggests that there is "good ground to reconsider that basis of decision . . ." .' However if the court appears to be climbing down from a precarious limb ,5 in Schneider v . The Queen, it appears to be taking itselfout on another and equally tenuous branch concerning the treaty power. It is this aspect of the judgment that constitutes ...
This article examines the power asserted by the federal government to spend funds on programs wit... more This article examines the power asserted by the federal government to spend funds on programs within provincial legislative jurisdiction, and the influence of that power upon federalism and responsible government. The author maintains that the existence of a "Federal spending power" is inconsistent with Canadian constitutional doctrine and values, and that the political justifications commonly offered in its support do not withstand close scrutiny. At the same time, he contends that the extent of governmental reliance upon the spending power precludes the courts from curtailing its use. He therefore urges a program of political reform going beyond the modest limitations on the spending power proposed in the Meech Lake Constitutional Accord.
The failure of traditional strands of legal formalism to provide a satisfactory account of law... more The failure of traditional strands of legal formalism to provide a satisfactory account of law's relation to material conditions, and its distinction from political practice, has given rise to a new variant of formalist theory: visionary formalism. In this essay, the authors examine visionary formalism through the work of one of its leading exponents, William E. Conklin. They contend that, far from rescuing legal formalism, the visionary account of constitutional adjudication put forward in Conklin's recent treatise, Images of the Constitution, exposes formalism for what it is: an effort to romanticize and legitimize a peculiarly regressive mode of political practice. In the final sections of the essay, the authors provide their own account of the connections among law, politics and material conditions. They conclude that only a "constitutive legal theory", embracing a critical understanding of the political nature and historical contingency of legal structures, of...
... ty, edward Belobaba, Benjamin Berger, allan Blakeney, John Borrows, gwen Brodsky, gillian cal... more ... ty, edward Belobaba, Benjamin Berger, allan Blakeney, John Borrows, gwen Brodsky, gillian calder, Jamie cameron, Jamie cassels, Don ... glasbeek, Donna greschner, reuben has-son, matthew hennigar, Janet hiebert, Peter hogg, grant hushcroft, martha Jackman, Tsvi Kahana ...
Notes of Cases Jurisprudence CONSTITUTIONAL LAW-REARRANGING THE ADMINISTRATION OF CRIMINAL JUSTIC... more Notes of Cases Jurisprudence CONSTITUTIONAL LAW-REARRANGING THE ADMINISTRATION OF CRIMINAL JUSTICE.-In C .N. Transportation' and Kripps Pharrnacy2 a majority of the Supreme Court of Canada decided that constitutional jurisdiction to supervise the conduct of criminal prosecutions belongs to the federal order of government. The purpose of this comment is to examine the principles enunciated by the majority in reaching this conclusion, and to consider the legal and political implications of their having done so .
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 ... more This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons.
Doctor Arbuthnot was not far short of the mark:'Law is a bottomless pit.'2 It is capabl... more Doctor Arbuthnot was not far short of the mark:'Law is a bottomless pit.'2 It is capable of accommodating all manner of philosophical insight, ideological choice, and hermeneutical possibility. In the three centuries following his observation, liberal theorists have railed ...
This article challenges the thesis of Peter W. Hogg, Allison A. Bushell Thornton, and Wade K. Wri... more This article challenges the thesis of Peter W. Hogg, Allison A. Bushell Thornton, and Wade K. Wright (put forth earlier in this issue) that the frequency of legislative responses to Charter decisions striking down laws, which they refer to as "Charter dialogue," provides evidence that Canada has a weaker form of. judicial review than is thought to exist in the United States. This article also critiques their claim that judicial review is justified by the idea that individuals have rights that cannot be taken away by an appeal to the general welfare'. The author maintains that this claim not only contradicts their previous arguments, but also undermines their position that Charter dialogue, insofar as it allows legislatures to reassert majoritarian objectives following adverse court decisions, is a good thing.
We welcome the opportunity to work with the Ministry pursuant to our common mandates to provide t... more We welcome the opportunity to work with the Ministry pursuant to our common mandates to provide the highest quality education, research, and community service to the citizens and communities of British Columbia. As Board Chair and President, we accept accountability for this plan and look forward to its implementation.
Those are my principles. I f you don't like them I have others. "-Groucho Marx * Dean and Associa... more Those are my principles. I f you don't like them I have others. "-Groucho Marx * Dean and Associate Professor, Faculty of Law, University of Victoria. I am indebted to Joel Bakan and Murray Rankin for their helpful comments and suggestions, and to Claudia Chender for her invaluable research assistance. Parts of this paper derive from Andrew Petter, "Rip Van Winkle in Charterland" in R. Bazowski, ed., The Charter at Twenty (McGill-Queen's University Press, forthcoming).
Commentary TAKING DIALOGUE THEORY MUCH TOO SERIOUSLY (OR PERHAPS CHARTER DIALOGUE ISN'T SUCH... more Commentary TAKING DIALOGUE THEORY MUCH TOO SERIOUSLY (OR PERHAPS CHARTER DIALOGUE ISN'T SUCH A GOOD THING AFTER ALL)® Andrew Petter" This article challenges the thesis of Peter W. Hogg, Cet article interpelle la thèse de Peter W. Hogg, Allison A. ...
TREATY-POWER, AND MORE ON RULES AND OBITER DICTA.-The recent decision of the Supreme Court of Can... more TREATY-POWER, AND MORE ON RULES AND OBITER DICTA.-The recent decision of the Supreme Court of Canada in the case of Schneider v . The Queen, 1 is of interest from a number of perspectives . The decision contains an important exposition of provincial legislative jurisdiction in respect of the prevention and mandatory treatment of disease. In the same case, 2 we learn that the Chief Justice disassociates himself from the view of four colleagues, expressed in his absence, in Hauser v. The Queen that the Narcotic Control Act is an exercice of the peace order and good government power rather than the criminal law power . Chief Justice Laskin suggests that there is "good ground to reconsider that basis of decision . . ." .' However if the court appears to be climbing down from a precarious limb ,5 in Schneider v . The Queen, it appears to be taking itselfout on another and equally tenuous branch concerning the treaty power. It is this aspect of the judgment that constitutes ...
This article examines the power asserted by the federal government to spend funds on programs wit... more This article examines the power asserted by the federal government to spend funds on programs within provincial legislative jurisdiction, and the influence of that power upon federalism and responsible government. The author maintains that the existence of a "Federal spending power" is inconsistent with Canadian constitutional doctrine and values, and that the political justifications commonly offered in its support do not withstand close scrutiny. At the same time, he contends that the extent of governmental reliance upon the spending power precludes the courts from curtailing its use. He therefore urges a program of political reform going beyond the modest limitations on the spending power proposed in the Meech Lake Constitutional Accord.
The failure of traditional strands of legal formalism to provide a satisfactory account of law... more The failure of traditional strands of legal formalism to provide a satisfactory account of law's relation to material conditions, and its distinction from political practice, has given rise to a new variant of formalist theory: visionary formalism. In this essay, the authors examine visionary formalism through the work of one of its leading exponents, William E. Conklin. They contend that, far from rescuing legal formalism, the visionary account of constitutional adjudication put forward in Conklin's recent treatise, Images of the Constitution, exposes formalism for what it is: an effort to romanticize and legitimize a peculiarly regressive mode of political practice. In the final sections of the essay, the authors provide their own account of the connections among law, politics and material conditions. They conclude that only a "constitutive legal theory", embracing a critical understanding of the political nature and historical contingency of legal structures, of...
... ty, edward Belobaba, Benjamin Berger, allan Blakeney, John Borrows, gwen Brodsky, gillian cal... more ... ty, edward Belobaba, Benjamin Berger, allan Blakeney, John Borrows, gwen Brodsky, gillian calder, Jamie cameron, Jamie cassels, Don ... glasbeek, Donna greschner, reuben has-son, matthew hennigar, Janet hiebert, Peter hogg, grant hushcroft, martha Jackman, Tsvi Kahana ...
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