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In early August, mainstream outlets repeated the findings of a flawed report describing alarming levels of antisemitism on university campuses. Two weeks later, the authors stated that 92 per cent of…

Podcast Episode · Queen's Faculty of Law: QLaw Pod · March 25 · 51m

The introductory chapter to Critical Conversations in Canadian Public Law situates the book "in the midst of some of the most significant social, economic, and political struggles of the past decade", from the COVID-19 pandemic to the Gaza genocide. The introduction describes how the book "seeks to reflect and ignite critical conversations about the centrality of public law and its institutions, broadly defined and deeply contested, to the (re)production of current inequities." It outlines two ways in which the collection is "critical": first, the critical legal methods employed by the contributors (e.g., acknowledging law's political operation, understanding law's relationship with power, and looking beyond descriptive accounts of law to consider its materiality and normativity); and second, "in terms of the importance, urgency, and necessity of deepening our understandings of the relationship between public law and contemporary inequities." Finally, the introduction identifies "five cascading themes reflected across the chapters in this collection—and across our varied experiences with the law—that are pivotal to the law's consistent mobilization to reify extant power disparities in society [...] exceptionalism, capitalism, segmentation, incrementalism, and formalism."

Critical Conversations in Canadian Public Law is a groundbreaking. open-access collection of peer-reviewed chapters exploring pressing issues at the intersection of public law and critical theory. Contributors examine claims about citizenship, rights. and the role of the state in addressing historic and ongoing injustices. The collection foregrounds critical perspectives such as Indigenous legal orders. critical race theory, feminisms. queer theory, and disability theory, offering an interdisciplinary and contextual understanding of public law. By bridging traditional l egal scholarship and critical approaches. Critical Conversations in Canadian Public Law reimagines public law as a discipline responsive to the diverse realities and urgent demands shaping Canada's legal and social landscape today.

This chapter provides an overview of equality rights under s. 15 of the Canadian Charter of Rights and Freedoms, including notes and questions to guide reflection on trends and tensions in the jurisprudence. First, the chapter excerpts the text of s. 15 and notes that s. 28 is an additional—though underutilized—equality provision in the Charter. Second, the chapter considers key concepts underlying s. 15, including equality, discrimination, and the justification of infringement under s. 1, with reference to the Court's first s. 15 decision in Andrews. Third, the chapter explores adverse effects discrimination, with excerpts from distinct settings of social hierarchy analyzed by the Court, "e.g., disability (Eldridge), sexuality (Vriend), gender (Fraser), and race/Indigeneity (Sharma)." Fourth, the chapter discusses analogous grounds of discrimination and the Court's leading decision on such grounds (Corbiere). Lastly, the chapter outlines affirmative action under s. 15(2) of the Charter, with reference to the Court's leading decision in Kapp.

In a new push for ‘lawfare’, pro-Israel groups are weaponizing the courts to silence criticism of Israel

This article outlines the concept of “critical race equality” in Canadian constitutional law and critiques the Supreme Court of Canada’s jurisprudential silence on systemic racism under section 15 of the Charter. First, the article discusses the theory of critical race equality. It describes six principles that animate a critical race perspective, which understands equality as ambitious, contextual, ideological, comparative, systemic, and positive. Second, the article discusses the practice of critical race equality. It traces a genealogy from the Supreme Court’s first equality decision (Andrews) to its latest (Fraser), both of which reflect the principles of critical race equality. This genealogy demonstrates that critical race equality has been consistently affirmed by the Supreme Court, yet has never been applied by the Court to ubiquitous systemic inequality confronting Black and Indigenous communities in Canada. This article concludes that systemic racial justice advocacy under section 15 of the Charter is doctrinally viable. Consequently, it calls upon a coalition of scholars, lawyers, and organizers to recognize that viability as one of many tools for challenging unconstitutional state neglect and advancing systemic racial justice.

The fight for Palestinian freedom—as well as for Canadian democracy—will be long and arduous. And it will require our collective resistance to evolving tactics of censorship. The TMU law students, and all the students setting up encampments around the world (including in Israel), have had an immense impact.

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.

An article from Windsor Yearbook of Access to Justice / Recueil annuel de Windsor d'accès à la justice, on Érudit.

English Abstract: This bilingual volume of the Supreme Court Law Review dedicates itself to the legacy of the Honourable Justice Clément Gascon, who became a judge of the Supreme Court of Canada in 2014 and retired in 2019. This introduction provides an overview of his career and a summary of the papers included in the collection, written by: Rt. Hon. Richard Wagner; Hon. Marie Michelle Lavigne; Hon. Rosalie Silberman Abella; Hon. Nicole Duval Hesler; Hon. Nicholas Kasirer; Catherine Le Guerrier; Prof. Janis Sarra; Sajeda Hedaraly & Éléna Sophie Drouin; Jérémy Boulanger-Bonnelly; Alex Bogach & Ben Lerer; Brodie Noga; Hon. Louis LeBel; Brandyn Rodgerson; and Prof. Joshua Sealy-Harrington.French Abstract: Ce volume bilingue de la Supreme Court Law Review se dédie à l’héritage juridique de l’honorable Clément Gascon, lequel est devenu juge à la Cour suprême du Canada en 2014 et a pris sa retraite en 2019. Cette introduction fournit un aperçu de sa carrière et un résumé des essais inclus dans la collection, lesquels ont été rédigés par: le très hon. Richard Wagner; l'hon. Marie Michelle Lavigne; l'hon. Rosalie Silberman Abella; l'hon. Nicole Duval Hesler; l'hon. Nicholas Kasirer; Catherine Le Guerrier; Prof. Janis Sarra; Sajeda Hedaraly & Éléna Sophie Drouin; Jérémy Boulanger-Bonnelly; Alex Bogach & Ben Lerer; Brodie Noga; l'hon. Louis LeBel; Brandyn Rodgerson; et Prof. Joshua Sealy-Harrington.

This article explores two disability justice legacies of Justice Clément Gascon. One legacy is embodied in his personal narrative of disability. Another legacy is jurisprudential and seen in his legal reasoning. On his embodied legacy, the article juxtaposes Justice Gascon’s widely publicized anxiety attack with Justice Le Dain’s private forced resignation following his hospitalization for depression thirty years earlier. This comparison reveals how, in many ways, attitudes around disability have not progressed, but rather reconfigured into more palatable forms. And on his jurisprudential legacy, this article conducts a critical disability theory analysis of Justice Gascon’s dissent in Stewart v. Elk Valley Coal Corp. In so doing, it highlights the ideological undercurrents that shape Canadian law, the link between ableism in society and ableism on the Court, and the importance of incorporating disability in contemporary discourse around judicial diversity.

A clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms recognized equality as “an elusive concept” that “lacks precise definition.” Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics.

A clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms1 recognized equality as “an elusive concept” that “lacks precise definition.”2 Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics. 1 s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164, 56 DLR (4th) 1 [Andrews].