Constitutional Forum 33.1 (2024)

Special Issue: Criminal Sentencing and the Charter (Guest Edited by Professor Colton Fehr, University of Saskatchewan College of Law)

 

Table of Contents (PDF)

 

Articles

 

Lisa Kerr, "The Place of Gladue in Constitutional Law" (PDF)

Mark Mancini, "Legislative Context in Sentencing: A Closer Look at R v Sharma" (PDF)

Marie Manikis & Marianne Lanctot, "From Gross Disproportionality to Human Dignity: Redefining Section 12 in the Context of Mandatory Minimum Sentences" (PDF)

Blair Major, "The Puzzle and Promise of Human Dignity: R v Bissonnette" (PDF)

Colton Fehr, "A Promising Piece of the Puzzle: Human Dignity and the Role of Section 1 of the Charter" (PDF)

 

 

 

 

 

 

Special Issue - Dickson v Vuntut Gwitchin First Nation case

This special issue of the Forum, edited by Associate Professor Amy Swiffen, examines the Yukon Court of Appeal decision in Dickson v Vuntut Gwitchin First Nation. 

The Dickson case is ground-breaking, as it considers whether a residency requirement for elected officials by the Vuntut Gwitchin First Nation can be shielded from a section 15 Charter challenge by section 25 of the Charter. Section 25 states that rights and freedoms in the Charter "shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada". The Court decided that when the exercise of self-government rights conflict with Charter rights, government power may be shielded from the Oakes test by section 25.

Rather than begin with the Charter as a starting point for approaching the case as the Court did, the authors in this issue begin with recognition of the inherent right of Indigenous peoples to self-govern. The case is currently on appeal to the Supreme Court of Canada.

Articles

1. Introduction: Special Issue on Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5
   Amy Swiffen
2. Checking our Attachment to the Charter and Respecting Indigenous Legal Orders: A Framework for Charter Application to Indigenous Governments
   Naiomi Metallic
3. Towards a Renewed Relationship: Modern Treaties & the Recognition of Indigenous Law-Making Authority
   Kate Gunn
4. Dickson v Vuntut Gwitchin First Nation, Section 25 and a Plurinational Charter
   Amy Swiffen
5. Doctrine Calling: Inherent Indigenous Jurisdiction in Vuntut Gwitchin
   Ryan Beaton
6. The Paradox of Political Questions in Canadian Aboriginal Law: Why Dickson v  Vuntut Gwitchin First Nation Requires Reconsideration of the Political Questions Doctrine in Canada
   Robert Hamilton

In this issue, edited by Colton Fehr (Assistant Professor, Simon Fraser University), and Jean-Christophe Bedard-Rubin (SJD candidate at the Faculty of Law of the University of Toronto and a Joseph Armand Bombardier Scholar) both Research Affiliates with the Centre for Constitutional Studies:

• David Beatty (Professor Emeritus, U of Toronto) makes a compelling case for clear, concise, and comprehensible judgments from the courts that focus on common sense and proportionality. This would put an end to the fixation people have with their rights, he says, such that our duty not to harm others would become a first priority. In this way, explaining when and why vaccination mandates are legal, for example, could mark a watershed in the history of law;
• Colton Fehr (Assistant Professor, Simon Fraser University) urges Canadian governments to impose vaccine mandates as other countries have done, but to carefully craft penalties for violation if they are to ensure that the mandates do not violate the Charter of Rights and Freedoms;
• Dave Guénette (Postdoctoral Fellow, Faculty of Law, McGill University) and Félix Mathieu (Assistant Professor in the Department of Political Science at the University of Winnipeg) argue that the Superior Court of Quebec's ruling on the constitutionality of the Act Respecting the laicity of the State (Bill 21) where the Court exempted English-language school boards from its application, leads to the question whether English language school boards in Quebec are becoming a constitutionally protected order of (local) government. To answer the question, they examine the historical and constitutional background of local governments in Canada, the recent and ongoing developments in Quebec, and then conclude with observations about what the evolution of minority educational rights (section 23 of the Charter of Rights and Freedoms) could mean for concepts such as 'personal federalism' in Canada.

Articles:

1. Covid, Courts, Communists and Common Sense
   David M. Beatty
2. Mandatory Covid-19 Vaccinations and the Charter
   Colton Fehr
3. Minority Language School Boards and Personal Federalism in Canada - Recent and Ongoing Developments in Quebec
   Dave Guénette & Félix Mathieu

Articles:

1. Introduction: Pluralism, Contestation, and the Rule of Law
   Keith Cherry
2. Bringing the Mixed Constitution Back In
   Mary Liston
3. Are There "Sources of Resilience" When the Separation of Powers Breaks Down?
   Arjun Tremblay
4. Harnessing Distrust and the Power of Intercession for the Separation of Powers
   Yann Allard-Tremblay
5. Checking the Other and Checking the Self: Role Morality and the Separation of Powers
   Hillary Nye