Papers by Benjamin L Berger
University of Toronto Quarterly, 2017
Social Science Research Network, Oct 8, 2009
Joe Arvay sometimes described his work as a lawyer as being a “plumber with words”. We think what... more Joe Arvay sometimes described his work as a lawyer as being a “plumber with words”. We think what he meant was that he strived to offer tangible solutions to concrete problems. In other words, while it’s good to know what the law says, and what legal enthusiasts think about how the law operates, Charterbreaches affect real people, most of them not lawyers. It is the lived experience of the law that ultimately ought to draw our concern, energy, and talents.If you want to bend the law towards justice, you need to focus remedial attention on what the law actually does and to whom, and on what the Court can actually do and for whom
On September 23-24, 2016, friends, family, colleagues, and admirers of the Honourable Marc Rosenb... more On September 23-24, 2016, friends, family, colleagues, and admirers of the Honourable Marc Rosenberg assembled in Toronto for a symposium in his honour, co-organized by Osgoode Hall Law School and the National Judicial Institute. Those in attendance included judges, lawyers, academics, and law students. Presenters at this symposium reflected on Marc Rosenberg\u27s work as a teacher, a lawyer, and a judge, and paid tribute to his legal and ethical contributions to the administration of justice. Many of the chapters in this volume grew out of those presentations. The keynote address opening the symposium was delivered by the Honourable Justice David H. Doherty, of the Court of Appeal for Ontario. Justice Doherty chose to reflect in particular on Marc Rosenberg\u27s sentencing jurisprudence and what it revealed about his philosophy of law and judging. The text of that address follows, serving as a fitting foreword to this volume
Allen’s words offer not only a lyric depiction of the animating tensions that make the criminal j... more Allen’s words offer not only a lyric depiction of the animating tensions that make the criminal justice system such a crucial point for social and political inquiry, but also invite a legal historical question, a question that supplies the focus of this volume: what effect has the Charter had on the nature and quality — on the justness — of this crucial point of contact between government and the governed? Have the legal rights contained in the Charter served as legal ligatures, tying the Canadian criminal justice system to the mast of reason and restraint? To be certain, the hope was that a new era of criminal law and procedure within a constitutional rights regime would create a more just system, one that would be more humane and fair for all, one that would more effectively bind state power and that would better protect both society and the accused — a system, in short, that would better strike that elusive balance between due process and crime control inimitably
Religion and the Exercise of Public Authority
Thank you to the contributors to this volume, and to my co-editor Richard Moon, for their valuabl... more Thank you to the contributors to this volume, and to my co-editor Richard Moon, for their valuable comments on an early version of this chapter. I am also very grateful to Rachel Devon for her superb research assistance.
Revue nationale de droit constitutionnel, 2018
This article approaches Adler v Ontario as a distinctively useful perch from which to survey the ... more This article approaches Adler v Ontario as a distinctively useful perch from which to survey the history and future of the constitutional interaction of law and religion. The case is positioned at a provocative place in the arc of the development of this interaction and the article uses the reasons in Adler to expose and explore some themes that shape not only our religion jurisprudence, but Canadian constitutionalism more generally. The article begins by examining what the majority’s heavy reliance on religion’s place in constitutional history suggests about the competing logics at work in Canadian constitutional life. That discussion leads to a reflection on the central role that religion has played in Canadian nation-building and federalism, a role that is abiding, not just historical. The article then looks forward from Adler, exploring the central place of issues surrounding the education of children in the development of law and religion jurisprudence in the years after Adler,...
The Journal of Appellate Practice and Process, 2017
In recent years, academic literature has given some attention to humility as an important adjudic... more In recent years, academic literature has given some attention to humility as an important adjudicative principle or virtue. Drawing inspiration from a Talmudic tale, this chapter suggests that the picture of judicial humility painted in this literature is not only incomplete, but even potentially dangerous so. Seeking to complete the picture of what this virtue might entail, this piece explores the idea that humility is found in awareness of one’s position and role in respect of power, and a willingness to accept the burdens of responsibility that flow from this. The chapter examines elements of Chief Justice McLachlin’s criminal justice jurisprudence that reflect elements of this understanding of the virtue of judicial humility, including careful attention to one’s responsibilities in relationship to vulnerability, history, and the role of others. Not an exercise in hagiography, the chapter also identifies one aspect of the McLachlin Court’s criminal justice jurisprudence — police ...
This article examines three axes around which contemporary Canadian debates on freedom of religio... more This article examines three axes around which contemporary Canadian debates on freedom of religion are turning: the status and protection of group and collective religious interests; the emergence – and instability – of state neutrality as the governing ideal in the management of religious difference; and the treatment of Indigenous religion. Each is discussed as a key thematic and doctrinal development emerging from recent activity in the freedom of religion jurisprudence in Canada. Each is also an instance, the article suggests, of religion doing its particularly effective work of exposing the fundamental tensions and dynamics in Canadian constitutionalism more generally.
We have good reason to worry that a jurisprudential world guided by a state duty of religious neu... more We have good reason to worry that a jurisprudential world guided by a state duty of religious neutrality is one in which Indigenous claims for religious freedom will fare particularly badly. This is so because state neutrality is an ideal precisely aimed at the depoliticization of religion, and yet it is precisely the depoliticization of Indigenous religions that robs them of their specificity and force. Following a methodological note on the use of the term “religion” to describe the complex and diverse rituals, practices, worldviews, and metaphysical commitments of Indigenous communities that are of concern in this piece, this chapter examines the demands that the Supreme Court of Canada’s emergent “duty of religious neutrality” imposes on the state. The two core demands — a requirement for even-handedness and an obligation for restraint in religious matters — involve and imply a certain ethic of metaphysical abstemiousness aimed at disentangling or insulating law and politics fro...
EnglishThis article seizes on recent controversies about the accommodation of religious differenc... more EnglishThis article seizes on recent controversies about the accommodation of religious difference in Canada to think more carefully about the relationship between federalism, sovereignty, and secularism. It examines the political origins and debates incited by the Charter of Quebec Values, a bill proposed by the sovereigntist Parti Quebecois minority government in 2013-2014 that sought to instill a particular vision of a “secular” State. By placing this bill in a long Canadian history in which assertions of a distinctive relationship with religion have served as the foundation for arguments about political and cultural distinctiveness, and for the claims of sovereignty that are thereby engendered, the article suggests that claims about the nature and demands of the secular serve as one modern and potent tool available in the politics of federalism. italianoL’articolo muove dalle recenti dispute per la composizione delle differenze religiose in Canada e intende svolgere una riflessi...
This chapter examines freedom of religion in the Canadian constitution. After locating the modern... more This chapter examines freedom of religion in the Canadian constitution. After locating the modern protection of freedom of religion within Canadian constitutional history, the chapter explores the Supreme Court of Canada’s interpretation of that right, drawing particular attention to how constitutional law defines and understands religion itself. The chapter then turns to three themes that have emerged as central in the freedom of religion jurisprudence, but that also reflect broader issues within Canadian constitutionalism: the instability of the public/private divide as a means of analysing constitutional problems; the tension between individual rights and regard for collective and community interests; and the paradoxes involved in the aspiration for state neutrality. Ultimately, the chapter argues that freedom of religion offers a unique avenue into understanding the deeper themes, tensions, ideologies, and politics at work in the Canadian state, and the history and logic of its ...
Varieties of Religious Establishment, Feb 17, 2016
Foster, and the participants in the Varieties of Religious Establishment workshop held at St. Tho... more Foster, and the participants in the Varieties of Religious Establishment workshop held at St. Thomas University in Fredericton, New Brunswick, in November 2010, for their valuable comments on earlier versions of this chapter. Thank you also to Hannah Askew and Jessica Gagne for their outstanding research assistance.
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Papers by Benjamin L Berger