The Power of Perspectives

The Canadian Bar Association

CBA/ABC National

Creative licence

Creative licence: Natasha Bakht

By CBA/ABC National March 15, 2017 15 March 2017

Creative licence: Natasha Bakht

 

"Dance has been an integral part of my life since I was a child. It grounds me and gives me inspiration and, like law, is an avenue to seek social justice and serve the public."

Natasha Bakht, an associate professor at the Faculty of Law, University of Ottawa, is an Indian contemporary dancer and choreographer.

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Criminal justice

Eliminating Canada's zombie laws

By CBA/ABC National March 9, 2017 9 March 2017

Eliminating Canada's zombie laws

 

Federal Justice Minister Jody Wilson-Raybould is taking a big old barbed-wire-covered bat to some Canada’s zombie laws in the Criminal Code – that is, invalid, unenforceable provisions in the Criminal Code that have been struck down by the courts for violating the Charter of Rights and Freedoms.

She introduced legislation on Wednesday that would remove or amend outdated provisions, such as the offence prohibiting abortion, as well as provisions dealing with driving under the influence and murder that have been struck down.

The fact that invalid provisions are still on the books has made headlines for creating confusion. CBA National reported last year on the judicial error made in the second-degree murder conviction of Travis Vader, where the presiding judge relied on a section declared unconstitutional in 1990 to deliver his verdict.

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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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