Contents

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CLWR 39 (2010) 7

'Free to Deal as He May Choose': The Displacement of 'Freedom of Commerce' as a Necessary Condition to the Creation of Canadian Multiculturalism
Bob Tarantino

In the 1940s the Canadian legal system was one which seemed incapable of recognizing racial discrimination as a problem worthy of jurisprudential attention. The 1939 Supreme Court of Canada decision in Christie v York Corporation confirmed that the owners of a tavern were entitled to refuse to serve a black man; in the infamous case of Viola Desmond, the courts held that a theatre owner was within its rights to segregate seating on the basis of skin colour. Excepting marginal voices expressing concern, no significant protest was raised against the court decisions. Sixty years later, facts virtually identical to those found in the Christie case resulted in a large monetary penalty being levied against the offending bar owner¿like an inversion of Christie before it, the decision was so congruent with contemporary sensibilities that it occasioned virtually no comment. Using the Christie and Desmond cases and the introduction of the Charter of Rights and Freedoms as focal points, this paper traces the linguistic and legal changes which help explain such radically different responses from the legal system.

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CLWR 39 (2010) 27

Twenty-five Years of Disability Equality? Interpreting Disability Rights in the Supreme Court of Canada
Lisa Vanhala

This paper explores the issue of disability equality in the Canadian context. It probes the ways in which the equality promises contained within the Charter of Rights and Freedoms have been interpreted by the Supreme Court of Canada in addressing disability issues. Drawing on legal cases brought by both disabled and nondisabled citizens the paper examines the extent to which the court has recognized disability as a social construction. Relying on socio-legal analyses incorporating the perspectives of disability rights activists and their allies the paper finds that the evolution of a substantive approach to equality for disabled persons has been (and continues to be) one of fits and starts.

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CLWR 39 (2010) 48

The Impact on the Inuit of Environmental Degradation to the Canadian Arctic
Bradford W. Morse and Michelle Zakrison

The Canadian Arctic has been undergoing profound and damaging environmental changes in recent decades at an ever accelerating rate. In addition to climate change, a wide variety of other factors are dramatically affecting water quality, biodiversity, land stability and ice reliability. These changes have a particularly negatively impact upon population health, local transportation, traditional knowledge, cultural identity, food supply and lifestyle of the Inuit. This paper examines the threats being imposed upon the Inuit in the Canadian Arctic and their capacity to respond directly through exercising opportunities available through recent land claim settlements and northern governments in which they play a dominant role. The paper then considers the limited capacity of the federal government to deal with northern environmental issues and the potential available through enforcing international environmental agreements and human rights.

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CLWR 39 (2010) 69

Speech, Equality, and Citizenship in Canada
Kathleen E. Mahoney

Hardly a day goes by without another legal controversy somewhere in the world regarding the regulation or suppression of hate speech. The problem is not only topical and current, it is increasingly problematic. Hatred, racism, xenophobia and related forms of intolerance have gone global, moving from promoting hatred against individuals and groups within states, to singling out these groups for discriminatory and differential treatment everywhere. The globalization of hatred includes the additional feature of terrorist activity¿the use of hate propaganda in recruitment efforts, the expansion of target groups, and the specific targeting of human rights defenders for violence and harassment. At the same time, the use of the Internet to incite violent crime and promote hatred has increased exponentially in the past 15 years. On the one hand, there is the marketplace of ideas approach, which posits that the solution for the hate speech problem is more speech. It flies in the face of the lived reality of victims of hate propaganda (such as survivors of genocide and other mass human rights violations) who understand that expression in an unregulated marketplace of ideas is used to the detriment of the search for the truth by undermining rationality and promoting deadly forms of intolerance, prejudice and violence. On the other hand, others are calling for increased limits on expression including the introduction of blasphemy laws to protect certain religious ideas from criticism, even when those ideas may promote hatred. The paper argues that the debate should be framed in terms of equality of citizenship, protection of speech rights for minorities and prevention of harm to individuals, not ideas. At the same time, a non-discriminatory understanding on the limits of expression must be found that avoids privileging of certain cultural and racial perspectives in the marketplace of ideas. The challenge is to develop protection for freedom of expression informed by principles of human dignity, equality and the prevention of harm. The Canadian Supreme Court has developed a unique and important jurisprudence in this area which should be considered.

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CLWR 39 (2010) 100

Professor Waldron Goes to Canada (One More Time): The Canadian Charter and the Counter-Majoritarian Difficulty
Charles-Maxime Panaccio

This paper addresses the legitimacy of the Canadian system of judicial review of state action for compliance with constitutional rights. It recalls the lively and sophisticated debate that took place on that issue within the larger process of federal¿provincial negotiations surrounding the 'patriation' of the Constitution. It is suggested that in many ways that public debate parallels that which is still going on among well-known academics such as Jeremy Waldron and Ronald Dworkin, among others. Since the constitutional entrenchment of the Canadian Charter of Rights and Freedoms in 1982, Canadian courts have been given the power to rule on and remedy violations of fundamental rights by the state. However, the Charter also includes what is often termed a 'notwithstanding' clause, which enables legislatures to shield legislative provisions from judicial review as long as this will is clearly expressed. Hence the paper further discusses whether such a clause can satisfy principled opponents to judicial review, more particularly whether it can meet the concerns expressed by Jeremy Waldron over the last 15 years or so. It is concluded that it cannot.

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Links to other issues

Volume 30 (2001) :   1   2   3   4

Volume 31 (2002) :   1   2   3   4

Volume 32 (2003) :   1   2   3   4

Volume 33 (2004) :   1   2   3   4

Volume 34 (2005) :   1   2   3   4

Volume 35 (2006) :   1   2   3   4

Volume 36 (2007) :   1   2   3   4

Volume 37 (2008) :   1   2   3   4

Volume 38 (2009) :   1   2   3   4

Volume 39 (2010) :   1

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