Your search

Recent global financial crises have resurrected debates over money and its provision, not only in economics but in law and history. This presents an opportunity to revisit past moments when money and banks were viscerally political and considered central to our legal order. This paper looks at one such moment: the conflict between Upper Canada’s Conservatives and Reformers leading to rebellion in 1837. While little mentioned in the literature, the legal architecture of money and banks played a central role in the Reform movement. The British had previously flooded the colony with publicly issued notes to fund the war of 1812. By the 1830s, this government monetary issue was fully redeemed and replaced with notes issued by the colony’s first three chartered banks. The reformers saw those banks as public agents, playing a public role, but without democratic accountability. After several failed attempts to reform that system, they turned to establishing their own institution, named the Bank of the People. In doing so, they saw themselves not as merely engaging in private commerce, but as directly contesting this fundamental public provision. This article provides a legal-political history of that early contest over Canadian money and sovereignty, and explores the way in which Upper Canada’s Reformers put forth a critique of bank-issued money that remains relevant today.

This article explains how the Supreme Court’s decision in R. v. Chouhan concerning jury impartiality is an illustrative example of “baselines”, or how implicit political positions held by judges govern their legal analysis. It begins with a summary of the background in Chouhan: the issue before the Court (the abolition of peremptory challenges) and how the judgment resolved that issue by constitutionally vindicating the impartiality of systemically white juries (an unfortunate continuation of the Court’s widely critiqued judgment in Kokopenace). Then, the article analyzes Chouhan through the lens of baselines. First, the article uses Chouhan to describe what baselines are—that is, by examining both the judgment and hearing, the article reveals how implicit political positions significantly drove the legal analysis in the case. And, given the political character of that baseline reasoning, the article briefly critiques the Court in two ways: (1) it critiques Justices Moldaver and Brown for relying on weak baseline positions, like juries already being diverse (they are not) or Canada not having intractable racial inequality (it does); and (2) it critiques the Court’s recent notice limiting intervention submissions to “legal” issues insofar as that limitation can, perversely, prevent interveners from challenging those weak baselines from which the Court may conduct its analysis. Second, the article uses Chouhan to describe what baselines do—that is, by examining Justices Moldaver and Brown’s opinion in Chouhan, the article demonstrates how judges’ baseline commitments can motivate their reasoning and lead them to make analytical errors. In their opinion, Justices Moldaver and Brown purport to defer to Parliament while nakedly legislating from the bench—indeed, they rule that their policy preference of ignoring race in jury selection should, “as a matter of law”, take precedence over Parliament’s preference for race-conscious processes. Further, Justices Moldaver and Brown strawman both jury diversity and peremptory challenges to bolster their position. Specifically, when jurists argue for more jury diversity, Justices Moldaver and Brown simply respond that no jury can be perfectly diverse, a fallacious response because doing something for jury diversity need not require doing everything. The article concludes by noting how the continuing relevance of baselines in constitutional interpretation demands ongoing and critical reflection on how Canadian jurisprudence is routinely produced from a baseline of “silly anecdotes”: white subjectivity masquerading as universal objectivity, which institutionalizes white supremacy in law.

Approaches to security issues in Canada today need to learn from the dire histories of what happens under the banner of national security.

Equality rights for LGBTQ+ peoples have a politically vexed relationship with substantive equality around the world. Critiques of the structural limitations and harmful, unintended consequences of rights claims have abounded in critical legal theory for decades. This chapter intervenes in these debates by mapping the structure and rhetoric of equality rights for LGBTQ+ peoples. Applying a legal analytical framework that originates in Eve Kosofsky Sedgwick’s writing, the chapter focuses on the text of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, released in 2007 and supplemented in 2017. The rhetoric of the Yogyakarta Principles is trapped in what Sedgwick calls a “radical and irreducible incoherence” between conflicting conceptions of gender and sexuality that has constrained the mission of substantive equality worldwide, yet which may be fundamental to the praxis of rights claiming in the international human rights system. Equality rights talk is “queer” in this sense – irresolvable in theory, powerfully productive for LGBTQ+ peoples in certain legal contexts, and profoundly harmful to LGBTQ+ peoples and other equality-seeking groups in other legal contexts. Considering this fact, the chapter concludes by arguing that LGBTQ+ activists should think about how we might negotiate the conflicts of equality rights rhetoric more strategically and responsibly by operating, paradoxically, both within and without the constraints of international human rights system to promote gender and sexual diversity on the global stage.

This review essay considers the universality of dilemmas and tensions that arise in class action litigation, wherever practised. It does so by exploring the evolution of the Australian class action in its doctrinal, political and historical dimensions, as recounted in Michael Legg and James Metzger’s edited collection of papers, The Australian Class Action: A 30-Year Perspective. While the book is rooted in the Australian experience, it lays bare common themes across jurisdictions, such as the unique role of the judge in a class action, the challenges to effective representation, and concerns about the commodification of litigation.

While much of Canada’s early commitment to religious freedom was simply a pragmatic compromise to ensure social peace and political stability, the Supreme Court of Canada in a series of judgments that pre-dated the Charter sought to articulate a principled account of religious freedom as an “original freedom” that is an important “mode[] of self-expression” and “the primary condition[] of the community life”. This understanding of religious freedom shaped the Supreme Court of Canada’s initial reading of freedom of conscience and religion protected by s. 2 (a) of the Canadian Charter of Rights and Freedoms. However, the story of religious freedom in Canada is not simply that of a linear progression from the pragmatic tolerance of religious minorities to the principled protection of the individual’s religious freedom. In its subsequent s 2 (a) decisions, the Court began to read freedom of religion as a form of equality right that requires the state to remain neutral in religious matters. The state must not prefer the practices of one religious group over those of another and it must not restrict the religious practices of a group unless it has a substantial public reason to do so. Underlying the Court’s commitment to religious freedom is a recognition of the deep connection between the individual and her/his spiritual commitments and religious community and a desire to avoid the marginalization of minority religious groups. Concerns about inclusion and social peace that lay behind the extension of religious tolerance in Canada’s early history continue to be important in the contemporary justification and interpretation of religious freedom. The Court’s commitment to state neutrality in religious matters requires it to distinguish between the private sphere of individual or group spiritual life and the sphere of public secular life. However, the line between these two spheres is contestable, moveable, and porous.