The Power of Perspectives

The Canadian Bar Association

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Constitution 150

The Charter as a living tree and the advance of socio-economic rights

By CBA/ABC National March 6, 2017 6 March 2017

The Charter as a living tree and the advance of socio-economic rights


As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National is featuring opinions by leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ upcoming conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Kerri A. Froc, a Postdoctoral Fellow at Carleton University, and a Trudeau and Vanier Scholar, to discuss the impact living tree constitutional interpretation has had on the recognition of socioeconomic rights.

CBA National: How is the living tree approach to Charter interpretation supposed to hold promise for the advance of socio-economic rights?

Kerri Froc: “Living tree” constitutionalism, as we know it in Canada, is that the meaning of words in the Charter can change; judges need only consider the contemporary meaning of the words; and that the text is a very loose guide, a sort of empty vessel in which meaning can be poured in.  Under this approach constitution-making history is treated skeptically.  And the Supreme Court has stated that this is the best way to ensure that rights are not “frozen,” that we do not have a Constitution that is increasingly out of step with Canadian society and becomes less and less relevant. In 2002, the majority of the Supreme Court said in the Gosselin case that “one day,” section 7 might be interpreted to include “a positive state obligation to guarantee adequate living standards,” but just not then, in that case.  It cited “living tree” constitutionalism to ground that possibility.  So it’s throwing out this hope that despite socioeconomic rights getting short shrift in many decisions, there might be a course correction in the future.

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Trial delays

Charter rights are not a technicality

By CBA/ABC National January 17, 2017 17 January 2017


Anne-Marie McElroy addresses concerns voiced in the public that the Supreme Court’s Jordan ruling, which imposed ceilings on getting criminal cases to trial, is contributing to more offenders being let go “on a technicality”:

On the face of it, it’s easier to assume that someone is factually guilty and then to move to the idea that a conviction should automatically follow. But Charter rights aren’t just technical or trivial. They form the basis of our justice system, setting out guidelines of appropriate behaviour of all of the players within it. The Charter is often the only tool that a judge has to send a message to police that the community standards do not permit the behaviour seen in a case, and the same goes for the institutional problems that have become pervasive with delays in having matters get to trial.

Léonid Sirota also tackled this question in a post following the release of the decision last year:

The Charter does not speak of “a right to be tried within a reasonable time, except for those accused of depraved offences.” The Jordan majority is quite right to say that only the complexity of the legal or factual issues, rather than the gravity of the charge, can justify a prosecution taking longer to conclude. Those who think otherwise need to amend the constitution.

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Year in review

CBA National’s top 10 articles for 2016

By CBA/ABC National December 22, 2016 22 December 2016

CBA National’s top 10 articles for 2016


Here are the top stories that resonated with our readers in 2016.

1. Shaking up the academy

By Leo Singer

Canadian law schools are suffering from an existential crisis.

The prospective lawyers emerging from their hallowed halls are unprepared for a profession in flux, critics argue.  It’s a new world out there: Billable hours and traditional large firms are giving way to new business structures, law is becoming increasingly globalized, and entrepreneurs are creating new ways to deliver cost-effective and flexible legal services.

Meanwhile, law schools are struggling to reconcile the contradictions and tensions inherent in a cobbled-together educational mandate. They find it increasingly tough to defend high tuition fees and higher expectations. And they remain mired in a debate about the true mission of a legal education, and its role in society.

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CBA Influence

Acting on the Indian Act

By CBA/ABC National December 15, 2016 15 December 2016


If the government enacts Bill S-3 – or some version of it – on or before the Feb. 3, 2017 deadline set by the Quebec Superior Court, as many as 28,000 to 35,000 people could become eligible to be registered as Status Indians under it.

And the proposed legislation’s lack of provision for that eventuality is just one of the concerns the CBA’s Aboriginal Law Section talked about in its submission when it appeared before the Senate Committee on Aboriginal Peoples on Nov. 29 and before the House Committee on Indigenous and Northern Affairs on Dec. 5.

The submission traces the long history of steps toward Bill S-3, including the 1985 Indian Act amendments that fell short of their intention to eliminate discrimination against women in the Indian Status registration system, as it retained a gender-based inequity in generations to come. 

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Criminal justice

Real solutions for fixing court delays

By CBA/ABC National December 13, 2016 13 December 2016


Earlier this month, Ontario’s Attorney General Yasir Naqvi (pictured above) and Quebec’s Justice Minister Stephanie Vallée both announced measures to reduce the seemingly intractable problem of court delays in our justice system, primarily by promising to hire more judges and prosecutors and to inject cash into the justice system.  Nova Scotia appears to be leaning more heavily on restorative justice programs as way of moving offenders charged with less serious crimes away from the court system.

Michael Spratt calls these band-aid solutions. He argues for the government to start reigning in prosecutors:

Any public anger should rightly be directed at the actions of the Crown. And this is where the government’s attention should be focused. A handful of additional judges and prosecutors will do little to change a systemic Crown culture of complacency, possessiveness and overzealousness.

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