Este artigo oferece um breve panorama da jurisprudência canadense desde a promulgação da Carta Canadense dos Direitos e Liberdades, em 1982. Ao mesmo tempo em que busca consolidar mais firmemente a liberdade religiosa, a Carta também tem colocado limites explícitos sobre o direito dessa mesma liberdade. Os Tribunais canadenses se mostram dispostos a intervir no funcionamento interno das instituições religiosas. A proteção legal foi ampliada no sentido de incluir não apenas as religiões não cristãs, mas também as crenças não religiosas (...) em geral. O efeito cumulativo dessas decisões tem corroído efetivamente a separação de fato entre a Igreja e o Estado que tem se desenvolvido no Canadá. O valor relativo a um crescente respeito ao pluralismo religioso é potencialmente compensado pelo aumento de intervenção judicial e pela imposição de valores seculares. Os tribunais têm definido "religião" e "pluralismo religioso" em termos cada vez mais seculares. Palavras-chave: Lei; Pluralismo Religioso; Tribunais Canadenses.This paper offers a brief overview of Canadian case law since the Canadian Charter of Rights and Freedoms was enacted in 1982. At the same time that it has more firmly entrenched religious freedom, the Charter has placed explicit limits on the right of religious freedom. Canadian courts have shown themselves willing to intervene in the internal workings of religious institutions. Legal protection has been extended to include not only non-Christian religions but also non-religious beliefs more generally. The cumulative effect of these decisions has been to effectively erode the de facto separation between Church and State that has developed in Canada. The value of increased respect for religious pluralism is potentially offset by increasing judicial intervention and by the correlated effective imposition of secular values. The courts have been defining "religion" and "religious pluralism" in increasingly secular terms. Keywords : law; Religious Pluralism; Canadian Courts. (shrink)

This is a collection of Canadian legal decisions, primarily from the Supreme Court of Canada, along with international cases that have bearing on Canadian law. The selected cases raise and respond to current and controversial issues in political and legal philosophy. Cases have been edited to present key legal principles and methods of judicial reasoning in action, showing not only what was decided but also how the decisions were made. Topics include: constitutional law, fundamental freedoms, equality rights, civil (...) and criminal responsibility, and sovereignty. This new fifth edition adds over two dozen new cases, including new sections on Indigenous issues and international law. A helpful glossary of common legal terms has also been added as an appendix. (shrink)

Feminist legal scholars have never cut the first woman appointed to the Supreme Court of Canada as much slack as the second. Yet the first, Justice Bertha Wilson, introduced the contextual method into the Court’s jurisprudence. Her approach to contextualism is consistent with one of three feminist legal methods that Katharine T. Bartlett identifies. More specifically, it is consistent with Bartlett’s feminist practical reasoning. However, Justice Wilson’s contextualism is not without its critics. The most challenging, Ruth Colker, contends it must (...) work in conjunction with a distinctive substantive principle. Justice Wilson took a different approach, aligning the contextual method with the constitutional principle of proportionality. Thus construed, this paper argues, contextualism represents a new approach to feminist judging. (shrink)

By analysing original sources and evaluating conceptual frameworks, this book discusses the idea proclaimed in the Preamble to the Constitution that Australia is a federal commonwealth. Taking careful account of the influence which the American, Canadian and Swiss Constitutions had upon the framers of the Australian Constitution, the author shows how the framers wrestled with the problem of integrating federal ideas with inherited British traditions and their own experiences of parliamentary government. In so doing, the book explains (...) how the Constitution came into being in the context of the groundswell of federal ideas then sweeping the English-speaking world. In advancing an original argument about the relationship between the formation of the Constitution, the representative institutions, configurations of power and amending formulas contained therein, fresh light is shed on the terms and structure of the Constitution and a range of problems associated with its interpretation and practical operation are addressed. (shrink)

Although canon-formation is, as Lecker suggests, a product of rhetoric and textual choices of critics, it is also a product of economic forces, political conflicts, and cultural expectations of coherence, “order,” and unitary explanation. Conditioned by some or all of these, an essay ostensibly skeptical of canons, as this one appears to be, can find itself nevertheless contributing to the thing it questions. In attempting to attribute the formation of a single national canon to a specific period , to a (...) specific and allegedly homogeneous group of actors , and to a specific social phenomenon , Lecker’s essay becomes another constructor of canonical text and theory. Behind its arguments that a canon suddenly came into being are fairly precise assumptions not only about “Canadian critics” but also about what constitutes canonicity, and about the relative legitimacy of canonicity claims. “At the end of World War II, Canadian literature was not taught as an independent subject in Canadian schools. There was no canon,” his essay begins . Is a school curriculum the only possible context for the attainment of literary “legitimacy”? Can there be no canon if a literature has no curriculum, education publishers, or “academic critics,” or if it has not been institutionalized as an “independent” subject? Frank Davey, chair of the department of English at York University, is the author of From There to Here: A Guide to English Canadian Literature Since 1960 , Surviving the Paraphrase , Margaret Atwood: A Feminist Poetics , and Reading Canadian Reading . He is also the editor of Open Letter and the on-line magazine Swiftcurrent. He is currently working on a study of nationalist ideologies in Canadian fiction entitled National Arguments. (shrink)

The judgment of the Supreme Court of Canada in the Quebec Secession Reference has produced a torrent of public commentary. Given the fundamental issues about the relationship between law and politics raised by the judgment, what is remarkable is that that commentary has remained almost entirely in a pragmatic perspective, which asks how positive politics entered into the motivations and justifications of the Court, and looks at the results in terms of their political consequences, without deep or sustained reflection on (...) the ultimate grounds for the role the Court took upon itself, or on the normative sources of its reasoning. In this article, we explore the Quebec Secession Reference through the lens of constitutional theory. In particular, we highlight three unconventional aspects of the Court’s reasoning: (a) the supplementation of the written constitution through an explicit process of amendment-like interpretation to craft a new legal framework governing the secession of a province from Canada, (b) the vesting by the Court of substantial, if not exclusive responsibility for interpreting the constitutional rules on secession in particular situations or contexts with political organs, not the courts, and (c) the ascent by the court to abstract normativity, in articulating a normative vision of the Canadian constitutional order, whence it derived the legal framework governing secession. In addition to drawing attention to these unusual aspects of the judgment, we articulate the theoretical justifications that both explain and justify those features of the judgment, and identify issues for future discussion. (shrink)

This short essay explores the importance of fear and violence in the genesis and life of constitutions, with a particular focus on the case of secession. Secession has been seen as a taboo and until recently constitutions tried to avoid mentioning it, considering such a phenomenon as an extra legal fact. A turning point has been represented by the famous Reference of the Canadian Supreme Court on Québec. Finally, in the last part of this work I shall try to (...) present some arguments in favour of the explicit constitutionalization of a secession clause in multi-national federalisms. (shrink)

The report entitled An Analysis of the Canadian Research and Development System for Agriculture/Food which was presented to the Science Council of Canada in July, 1991 contains many far-reaching recommendations for revisions of the research and educational components of the Agriculture/Food System in Canada. The report calls for research of holistic and interdisciplinary nature. It calls for determination of research priorities by broadly constituted committees which would include reporesentaitves heretofore not included in the process of decisionmaking regarding scientific research. (...) In addition, it calls for restructuring of the agricultural education system. The Co-editors of this Journal, believe that these recommendations should be wildely discussed and, therefore, requested publication of the Executive Summary of this Report. (shrink)

The Preamble to the Charter of Rights and Freedoms claims "Canada is grounded upon principles that recognize the supremacy of God." This claim is hopelessly confused and it has no place in our constitution. This is true, moreover, whether you are a Christian, a Jew, a Muslim, a Pantheist, an atheist, or someone who has never given one moment's thought to "the supremacy of God" -- much less "recognized" it.

In several of John Dewey's works on education, including Democracy and Education and The School and Society, he models the ideal school after the ideal community, conceiving the former as a microcosm of the latter. More recently, James Fishkin in Democracy and Deliberation and The Voice of the People renders a deliberative poll design with an eye to making its randomly selected deliberators representative of much larger groups, and in this way microcosms of the population-at-large. Thus, the smaller group deliberates (...) as if it were the much larger population assembled together to deliberate in mass-scale citizen assemblies. Although random selection is not widely accepted as a legitimate method for selecting political representatives, it has many desirable features, the most important of which is its ability to constitute bodies that resemble, and in this sense, represent larger populations. This last notion that smaller deliberative bodies can perform as if they are the larger populations represented-which I call the 'microcosm concept'-is not distinctly American, though many commentators trace it back to the musings of John Adams and some of the Anti-Federalists. In this paper, I argue that insights derived from Dewey's model of an educational microcosm can be appropriated and employed as resources to defend Fishkin's model of a deliberative microcosm against contemporary critics, such as Robert Goodin and Cass Sunstein. Besides defending Fishkin's deliberative poll design against its critics, I also argue that a Dewey-Fishkin partnership can help to improve actual deliberative institutions. I show how the Dewey-Fishkin microcosm concept operates in an actual deliberative event: the Ontario Citizens' Assembly on Electoral Reform, whereby a group of randomly-selected citizens were assembled and charged to deliver recommendations on whether to change the existing electoral system in the Canadian province of Ontario. (shrink)

This is the text of The Lindley Lecture for 1989, given by David Gauthier, a Canadian philosopher.

This paper poses a problem of promiscuity for views that endorse material constitution as a metaphysic relation.

This paper argues that constitutionalism raises some serious concerns of moral legitimacy. Following a preliminary outline of the main features of constitutionalism, the paper presents some of the main moral concerns about the legitimacy of constitutions. It then considers in detail a number of arguments which purport to answer those concerns, arguing that they all fail to meet the challenge. The paper concludes with a brief outline of some of the moral implications of this failure and some suggestions for reform.

The question of the character of constitutional rights norms is complex and admits of no easy answer. Without reducing the complexity of the issue, I attempt in this paper to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning that combines both balancing and the grounds as to why balancing is appropriate . Absent the latter type of reason, the application of constitutional principles remains a pure instance of (...) balancing. Each time those reasons are touched upon, however, balancing becomes subject to deontological constraints. Yet deontological reasons are neither self-proclaiming nor complete. Rather they require for their articulation the background of an already operational practice of practical reasoning. This practice exemplifies what I shall dub the structure of autonomy, that is, a set of regulative ideals, not yet definitive norms, that derive from the reflective character of human agency. This structure comes to light when one turns to the agent’s point of view – to the point of view of someone who is engaged reflectively with practical questions . The structure of autonomy is more fundamental than any deontological or teleological reasons: it is in its light that deontology and teleology need to be understood as representing merely complementary forms of argument, which can be employed in reasoning that aims to maximise constitutional rights provisions. At the same time, the structure of autonomy as a regulative ideal generates prima facie reasons for allocating greater weight to deontological arguments in the relevant contexts of balancing. Such prima-facie reasons do not prescribe fully-fledged deontological constraints, but merely set the burden of proof in favour of specific reasons and ensure that the structure of autonomy be respected overall. (shrink)

Several social metaphysicians have argued that groups are constituted by, but not identical to, their members. While the constitution view is promising, there are significant difficulties with existing versions of that view. Fortunately, lessons may be extracted from more traditional metaphysics and applied to the case of group agents. Drawing on such lessons, I present a novel account of the constitution relation holding between individuals and group agents. According to the resulting structural-constitution view, when individuals constitute a (...) group of a certain kind, they do so in virtue of exhibiting the structure characteristic of groups of that kind. (shrink)

Legal scholars generally consider the theorisation and constitutionalisation of constitutional interpretation as a matter for the courts. This article first challenges this tendency on conceptual grounds, showing that no institutional commitment follows from the nature of interpretation in law, constitutional law included. It then provides guidance for thinking about institutional perspectives according to two criteria: the nature and normative strength of the sources interpreted and the capacity of the interpreter to include and consider every possibility affected when her interpretation carries (...) collective effects and is authoritatively final. The application of these criteria places the discussion on the grounds of democratic theory. The article thus reviews competing democratic theories and champions deliberative democracy as the alternative whose constitutive features best allow for the development of institutions capable of exercising constitutional interpretation when the imposition of meaning on the constitution is final and carrieserga omneseffects. (shrink)

The publication of the Fraser Institute's Discrimination, Affirmative Action, and Equal Opportunity offers an occasion to review some of the practical and philosophical issues raised by affirmative action policy. Canadian affirmative action programs derive from the American context, which is here reviewed, but do not have the legal recourse available in the American system. Perhaps as a consequence, most Canadian programs have been carried out by governments acting in their role as employers. The Canadian Union of Public (...) Employees has been especially active in developing union perspectives on affirmative action programs, which do raise special concerns for organized labour. Affirmative action raises several basic questions: the importance of proportionality, merit, compensation and role models in determining who is entitled to opportunities in our society. Differences between the Fraser Institute's attitude about affirmative action and attitudes of other social groups, such as the labour movement, lie in their very different assumptions about what constitutes a free society. (shrink)

There is a paucity of research into the prevalence of academic dishonesty within Canada compared to other countries. Recently, there has been a call for a better understanding of the particular characteristics of educational integrity in Canada so that Canada can more meaningfully contribute to current discussions surrounding academic integrity. Here, we present findings from student and faculty surveys conducted within a medium-sized Canadian university. These surveys probed perceptions towards, and experiences with, academic dishonesty, in which we aimed to (...) understand how students and faculty regarded academically dishonest practices during their postsecondary careers. We also aimed to understand how often students engaged in, and faculty had witnessed, academic dishonesty, whether or not witnessing incidents of academic dishonesty corresponded with gender, year of experience, highest level of educational attainment, discipline, or their personal perceptions towards the importance of academic honesty, and whether students had been adequately taught what constitutes academic dishonesty. We found that an overwhelming majority of students viewed academic honesty as important, and that most students reported not engaging in academic dishonesty themselves despite 45.8% reporting that they had witnessed others engage in academic dishonesty. We also found that students were more likely to witness cheating as their postsecondary experience increased, that witnessing varied across disciplines and educational attainment, and that witnessing varied with student perceptions. However, we found no such patterns in faculty responses, but found that faculty are split on whether or not they believe incidents of academic honesty are increasing. (shrink)

Democracy and human rights have long been strongly connected in international covenants. In documents such as 1948 United Nations Universal Declaration of Human Rights and the 1966 International Covenant of Civil and Political Rights, democracy is justified both intrinsically in terms of popular sovereignty and instrumentally as the best way to “foster the full realization of all human rights.” Yet, even though they are human and thus universal rights, political rights are often surprisingly specific. In the Covenant, for example, “the (...) right to take part in the conduct of public affairs” is equated with “the right to vote and to be elected.” More often then not, their realization is left to states and their constitutions, as for example in the European Convention for the Protection of Human Rights. Political rights have a “peculiar” status among enumerated human rights, and this difficulty has to do with deep assumptions about the nature and scope of democracy and political community that remain unexamined by the drafters of these important declarations. (shrink)

'Writing with admirable lucidity and disposing a wide knowledge of technical questions in philosophy as well as of legal theory and constitutional history, Bassham competently distinguishes the quite distinct ideas that go, or could go, under the name of originalism.' |s CANADIAN PHILOSOPHICAL REVIEWS.

Although Canada has not yet enacted any biobanking-specific privacy law, guidance and oversight are provided via various federal and provincial health and privacy-related laws as well as via ethics and policy documents. The primary policy document governing health research, the Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans, provides the framework for the strong role of Research Ethics Boards in Canada, and limits research funding from Canada's three main federal funding agencies to those who agree to adhere to its (...) policies. The broad consent model is gaining traction in Canada, although lack of legal and constitutional precedence for the broad consent or opt-out options makes this an evolving issue. In general, data is required to be coded; more specific security measures are outlined in guidelines that may be implemented by local policy. International sharing is allowed, and Canada meets the European Union's standards for receipt of data and samples. (shrink)

The idea and development of political sovereignty among the North American peoples represents a radical departure from the older European politics of the nation state. Developments in American and Canadian history, as well as the burden of contemporary political debates in these countries, are understood philosophically as the working out of the implications of a commitment to the idea of the state as the foundation and mainstay of a universal human freedom.

The modem rationalist tradition initiated by Descartes has as one of its central tenets the independence of the human understanding from the senses. Regardless of the different ways in which independence from experience is understood, there is much common ground among the modem views on the a priori. Yet Kant, culminating this tradition, introduces an entirely new conception of the a priori never before articulated in the history of philosophy. This is the notion of elements in knowledge which are independent (...) of experience but nevertheless closely connected, in a special way, with experience.Although for Kant the a priori has a privileged position in the structure of knowledge - as it has for other modem rationalist philosophers - one of the most striking, and often neglected, aspect of his conception of the a priori is the great extent to which it is opposed to foundationalism. (shrink)

The Supreme Court of Canada has established that commercial speech is protected under the Canadian Charter of Rights and Freedoms and that commercial speech exists along a continuum of utility and value, which is balanced against objectives such as public health. This article examines jurisprudence to determine when infringements on commercial speech are acceptable, analyzing considerations of evidence, rational connections between policies and outcomes, proportionality, and minimal impairment.

The doctrine of parliamentary sovereignty of the United Kingdom parliament is often presented as a unique legal arrangement, one without parallel in comparative constitutional law. By giving unconditional power to the Westminster parliament, it appears to rule out any comparison between the Westminster Parliament and the United States Congress or the German Bundestag, whose powers are limited by their respective constitutions. Parliament in the UK appears to determine the law unconditionally and without limit. Nevertheless, a fuller understanding of parliamentary sovereignty (...) as a legal and constitutional doctrine shows that this first impression is false. The nature of the British unwritten constitutional order is entirely similar to the written one prevailing in the United States or Germany. This is because the doctrine of parliamentary sovereignty, contrary to Dicey’s classic view, does not consist in a single dominant idea but in a number of related and mutually supporting principles that constitute higher law. The way in which these principles interact is parallel to the interaction of the main clauses of the United States Constitution or the German Basic Law. This analysis shows that the constitution, written or unwritten, never requires a ‘pouvoir constituent’. The constitution emerges from the law as the result of moral and political principles that breathe life into our public institutions. (shrink)

Concentrating on the thought of Canada's major scientists, philosophers, and clerics - men such as William Dawson and Daniel Wilson, John Watson and W.D. LeSeur, G.M. Grant and Salem Bland - A Disciplined Intelligence begins by reconstructing the central strands of intellectual and moral orthodoxy prevalent in Anglo-Canadian colleges on the eve of the Darwinian revolution. These include Scottish common sense philosophy and the natural theology of William Paley. The destructive impact of evolutionary ideas on that orthodoxy and the (...) major exponents of the new forms of social evolution - Spencerian and Hegelian alike - are examined in detail. By the twentieth century the centre of Anglo-Canadian thought had been transformed by what had become a new, evolutionary orthodoxy. The legacy of this triumphant intellectual movement, British idealism, was immense. It helped to destroy Protestant denominationalism, provide the philosophical core of the social gospel movement, and constitute a major force behind the creation of the United Church of Canada. Throughout the nineteenth century and continuing into the twentieth, however, the moral imperative in Anglo-Canadian thought remained a constant presence. (shrink)

This paper builds on the work of several exceptional scholars from the disciplines of philosophy, law, and history. My central aim is to introduce and explicate an idea closely related to (and derivative of) the concept of rights talk, a concept I call ‘constitutional emotivism’. By drawing upon scholars including Mary Ann Glendon, Jamal Greene, A.J. Ayer, and Alasdair MacIntyre, I aim to gather the conceptual threads that I trace through their work which together form the idea of constitutional emotivism. (...) In a sentence, constitutional emotivism is the conflation of moral disagreements with constitutional rights grievances. When this conflation occurs, rights conflicts that never needed to occur in the first place reinforce rights talk and its uncompromising nature. (shrink)

In the immediate post-war period, a set of thinkers, most notably Jacques Maritain, developed influential natural law theories of constitutional democracy. The central tenet of the natural law approach to the post-war settlement was that, without the type of foundational understanding of the constitutional system it was proposing, the new democratic political institutions would relapse into totalitarianism. In response to this natural law challenge, Hans Kelsen sought to explicate and defend a self-consciously secular and relativistic understanding of the basis of (...) constitutional democracy. This article will examine the debate between the Kelsenian and the natural law view of constitutional democracy. The debate raises questions of foundational importance, and a number of issues are of particular concern in the present global context. These issues concern the role of moral pluralism and its relevance to the structure of constitutional democracy, and the relationship between universal values and the common good of particular communities. (shrink)

Canada is caught between two empires and between two constitutional systems. However, neither the British model of a "single sovereign" nor the American people's "sacred fire of liberty" matched the pluralistic identity of Canada, so Canadians engaged in constitutional experimentation. In Canada and the Ethics of Constitutionalism Samuel LaSelva argues that, in order to understand the old Canada of Confederation and the new one that followed the Charter of Rights and Freedoms, it is necessary to see how distinctive Canadian (...) constitutionalism is and how that distinctiveness does not depend on borrowings from the British or American constitutional models. LaSelva supports his argument by exploring different aspects of Canada's contribution to the ethics of constitutionalism including the limits of free expression, the Charter's notwithstanding clause, the origins and functions of judicial review, the Quebec secession debate, Aboriginal self-government, and the conception of Canada as a multicultural and multinational mosaic. Through a careful consideration of how Canadian constitutional pluralism with its focus on the rights of others differs from American and British ideas, Canada and the Ethics of Constitutionalism provides engaging answers to contested questions about how Canada was founded and what it has become. (shrink)

By an incomplete sentence we shall understand a declarative sentence that can be used, without variation in its meaning, to make different statements in different contexts. Although the point deserves supporting argument, which we will not provide, sentences whose grammatical subjects are indexical expressions or demonstratives are obvious, plausible examples of incomplete sentences. Uttered in one context the sentence ‘He is ill’ may be used to make one statement, for example, that George is ill, while in another context the very (...) same sentence may be used to make a quite different statement, for example, that Paul is ill. (shrink)

This article considers the relationship between moral philosophy and constitutional theory through a detailed examination of the work of Jeremy Waldron—an unavoidable voice in contemporary constitutionalist debate. Through a rigorous, original and holistic deconstruction of his work and its philosophical implications, I argue that Waldron’s engagement with core philosophy within his constitutional scholarship is wholly problematic, containing a number of ambiguities and apparent inconsistencies. These issues, I suggest, may stem from an at times rather casual treatment of the realist/anti-realist issue (...) of core philosophy, perhaps owing something to his view that it is in fact safely irrelevant to his constitutional pursuits. In any case, this view, I argue, is misguided, and the problems which result are real: they not only create issues of theoretical consistency and clarity; they put Waldron’s constitutional theory in danger. Like all good tales, I suggest there are lessons to be learned from this: one must think, and think carefully, about the philosophical background of one’s work, and take care in setting this out in a clear, thorough and coherent way—the stakes are too high not to. With this in mind, this article also lays some groundwork for a path into constitutional theory firmly grounded in my own anti-realist moral scepticism. (shrink)

This paper starts by discussing Alan Brudner's overall project: the project of inclusivity. It argues that the idea of inclusivity is problematic both conceptually and normatively, for three reasons. First, it is not clear that Brudner's aim to provide a unified theory of the liberal constitution is either possible or desirable. Second, Brudner assumes but does not adequately demonstrate the need for public justification of the liberal constitution. Third, Brudner does not sufficiently explain who should have a veto (...) over his final theory. The paper then turns to Brudner's analysis of sex and family, and argues that his position on these matters is one that liberals would reject. In the case of marriage, Brudner’s conclusions may be compatible with liberalism but the arguments supporting them are not. In the case of abortion, neither argument nor policy is compatible with liberalism. Either his position requires that we attribute differential status to human persons, in direct contravention of the fundamental equality of moral worth that liberalism accords to all individuals. Or it requires that we override the rights of individuals by asserting that their own self-authorship is less important to them than a symbol of their personal relationship, a judgment that profoundly undermines individual autonomy. (shrink)

Part of the National Placebo Initiative in Canada included public consultations, based on the belief that the views of the public should inform Canadian policy development on what constitutes appropriate placebo use. Public consultations took place nationally in 2003. A deliberative dialogue approach was used, or a structured discussion format designed to facilitate the consideration of complex issues and build consensus. The placebo debate was characterized as having 3 distinct approaches and each were explored. The first approach “Maximize Patient (...) Protection” identified the need for experts to determine appropriate placebo use and that placebos should only be allowed under very restricted conditions. The second approach “Maximize Medical Knowledge” identified that placebos give essential information about the safety and efficacy of new drugs, and are appropriate when the rights, safety and well-being of research participants are ensured. The third approach “Maximize Patient Autonomy” identified that the current system of regulating placebo use is paternalistic and that patients should be able to define what is in their best interests and have more leeway to determine for themselves if they wish to participate in a placebo-controlled trial. Advantages and disadvantages of each approach were considered and feedback on what constitutes appropriate placebo use was sought. The major findings were that: PCTs were considered a valuable and acceptable part of advancing medical knowledge; research using placebos must be valid and justifiable; a patient-centred approach needs to be fostered; patient autonomy (choice) should be a first consideration and take clear precedence in trials of low to medium risk; patient protection (or health) may need to “trump” patient autonomy at higher levels of risk and/or patient vulnerability; placebos are not a violation of the duty of care as duty of care is best met by identifying a choice for patients, whenever a choice is available. These consultations clearly were not designed to produce conclusive evidence, but rather to provide some useful insights into what the public may think about placebo use; additional studies are indicated. (shrink)

Constitutional interpretation in Canada is dominated by the metaphor of the “living tree”. Living tree constitutional interpretation is usually defined in terms of its incompatibility with what is understood in Canada to be the central commitment of originalist interpretation: that the constitution is, in some sense, “frozen” at the moment of adoption. But the tenets of originalism that are used as a definitional contrast are not widely held by originalist constitutional scholars today, and are in fact expressly rejected in (...) the new originalist theories that have been developed principally in the United States over the past 20 years. There has not been a meaningful engagement in Canada with contemporary schools of originalist interpretation. The originalism rejected by the Supreme Court of Canada in 1985 , is not the new originalism, and a rejection of this new family of interpretive theories does not necessarily follow from the fact of the Supreme Court of Canada’s rejection of original intent originalism. Unfortunately, the Canadian courts have continued to affirm living tree constitutional doctrine and denounce originalism without providing much of an account of what they are accepting or rejecting. This paper is a prefatory study to an engagement with new originalist scholarship. I attempt a statement of the current commitments in Canadian living constitutional doctrine and, in passing, note the Supreme Court’s attitudes towards originalism. My purpose is to determine what the central commitments of living tree constitutional doctrine are, as a preliminary step towards a later study to determine the extent to which Canadian doctrine is truly incompatible with orginalist interpretation. I explore what I observe to be the four central commitments to living tree constitutionalism in Canada: the doctrine of progressive interpretation; the use of a purposive methodology in progressive interpretation; the absence of any necessary role for the original intent or meaning of framers in interpreting the constitution; and the presence of other constraints on judicial interpretation. (shrink)

Identity and Experience: The Constitution of the Human Being According to Early Buddhism. Sue Hamilton. Luzac Oriental, London 1996. xxxi, 218 pp. £30.00. ISBN 0 898942 10 2. The Five Aggregates: Understanding Theravada Psychology and Soteriology. Mathieu Boisvert. (Canadian Corporation for Studies in Religious Writings, Wilfrid Laurier University Press, Waterloo, Ontario, 1995. xii, 168 pp. $24.95. ISBN 0-88920-257-5.

We provide the results of a systematic key-informant review of medical humanities curricula at fourteen of Canada’s seventeen medical schools. This survey was the first of its kind. We found a wide diversity of views among medical educators as to what constitutes the medical humanities, and a lack of consensus on how best to train medical students in the field. In fact, it is not clear that consensus has been attempted – or is even desirable – given that Canadian (...) medical humanities programs are largely shaped by individual educators’ interests, experience and passions. This anarchic approach to teaching the medical humanities contrasts sharply with teaching in the clinical sciences where national accreditation processes attempt to ensure that doctors graduating from different schools have roughly the same knowledge (or at least have passed the same exams). We argue that medical humanities are marginalized in Canadian curricula because they are considered to be at odds philosophically with the current dominant culture of evidence-based medicine (EBM). In such a culture where adhering to a consensual standard is a measure of worth, the medical humanities – which defy easy metrical appraisal – are vulnerable. We close with a plea for medical education to become more comfortable in the borderlands between EBM and humanities approaches. (shrink)

A drug overdose epidemic in North America has sped the expansion of harm reduction services. Drawing on fieldwork in Ottawa, Ontario, we examine forms of care among people offering and accessing these resources. Notably, our interlocutors do not always characterize harm reduction as caring for oneself. Thus, we differentiate between the ethics of care through which one enters desired subject positions, and anethical careful practices. Harm reduction is sometimes anethical, enacted through minor gestures that do not constitute ethical work but (...) allow for its future realization. Une épidémie d’overdose de drogue en Amérique du Nord a accéléré l’expansion des services de réduction des risques. En s’appuyant sur un travail de terrain à Ottawa, Ontario, nous examinons les formes de souci et soin parmi les personnes qui fournissent ces ressources et qui y ont accès. Tout particulièrement, nos interlocuteurs ne caractérisent pas toujours la réduction des risques comme le souci de soi. Ainsi, nous faisons la différence entre l’éthique du souci de soi et des soins par laquelle on entre dans les positions de sujets souhaitées, et les pratiques soignantes anéthiques. La réduction des risques est parfois anéthique, mise en œuvre par des gestes mineurs qui ne constituent pas un travail éthique mais permettent sa réalisation future. (shrink)

John Haugeland has recently attempted to provide a naturalistic account of intentionality that explains how we can (collectively) misidentify objects in the world in terms of the interplay of two types of 'recognitional' skill. Nevertheless, it is argued here that his inegalitarian conception of the two sorts of skill leaves him with a quasi-conventionalist account of our relation to the world which lacks the more robust sort of objectivity that a more holistic theory could provide.

Locke's claims about the "inadequacy" of substance-ideas can only be understood once it is recognized that the "sort" represented by such an idea is not wholly determined by the idea's descriptive content. The key to his compromise between classificatory conventionalism and essentialism is his injunction to "perfect" the abstract ideas that serve as "nominal essences." This injunction promotes the pursuit of collections of perceptible qualities that approach ever closer to singling out things that possess some shared explanatory-level constitution. It (...) is in view of this norm regulating natural-historical inquiry that a substance-idea represents a sort for which some such constitution serves as the "real essence," i.e. as that on which all the sort's characteristic "properties" depend. (shrink)

In "Constitutional Goods" Alan Brudner presents novel conception of justice that will inform the content of the ideal liberal constitution. The content of this novel conception of justice is constituted by what Brudner describes as an inclusive conception of liberalism, and its justification is grounded on an account of public reason that is presented in opposition to that of John Rawls. I argue that we should reject both the content and justification of Brudner's conception ofjustice. Brudner is unable to (...) construct an inclusive conception of liberalism from elements of libertarianism, egalitarianism, and communitarianism, and his account of public reason lacks the properties of fairness and reciprocity that differentiate a reasonable agreement from a modus vivendi. This paper therefore defends a Rawlsian political conception ofjustice and justification from Brudner's criticisms and proposed alternatives. (shrink)

Then newly elected Labor Prime Minister, Kevin Rudd, made a historic statement of “Sorry” for past injustices to Australian Indigenous peoples at the opening of the 2008 federal parliament. In the long-standing absence of a constitutional ‘foundational principle’ to shape positive federal initiatives in this context, there has been speculation that the emphatic Sorry Statement may presage formal constitutional recognition. The debate is long overdue in a nation that only overturned the legal fiction of terra nullius and recognised native title (...) to lan with the High Court’s decision in Mabo in 1992. This article explores the implications of the Sorry Statement in the context of reparations for the generations removed from their families under assimilation policies (known since the Bringing Them Home Inquiry as the Stolen Generations). We draw out the utility of recent human rights statutes—such as the Human Rights Act 2004 (ACT)—as a mechanism for facilitating justice, including compensation for past wrongs. Our primary concern here is whether existing legal processes in Australia hold further capacity to provide reparation for Australian Indigenous peoples or whether their potential in that regard is already exhausted. We compare common law and statutory developments in other international jurisdictions, such as Canada, as an indication of what can be achieved by the law to facilitate better legal, economic and social outcomes for Indigenous peoples. The year 2008 also saw Canadian Prime Minister Stephen Harper express his apology to residential school victims in the Canadian Parliament, providing thematic and symbolic echoes across these two former colonies, which, despite remaining under the British monarchy, both forge their own path into the future, while confronting their own unique colonial past. We suggest that the momentum provided by the recent public apology and statement of “Sorry” by the newly elected Australian Prime Minister must not be lost. This symbolic utterance as a first act of the 2008 parliamentary year stood in stark contrast to the long-standing recalcitrance of the former Prime Minister John Howard on the matter of a formal apology. Rather than a return to a law enforcement-inspired “three strikes and you’re out” approach, Australia stands poised for an overdue constitutional and human rights-inspired “three ‘sorries’ and you’re in”. (shrink)

The last two decades have witnessed a wide-ranging and global discussion of the theory and structure of human and constitutional rights. This debate initially focused on the principle of proportionality and subsequently on the related ideas of the ‘culture of justification’ and the ‘right to justification.’ There is now a far-reaching agreement that both proportionality and justification in human and constitutional rights law are concerned with the reasonableness, alternatively the justification in terms of public reason, of the act under consideration. (...) Thus, reasonableness and/or public reason have assumed a, perhaps the, central place in the theory of human and constitutional rights. (shrink)

The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the relative competence of legislatures (...) and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree” constitutional interpretation. The only “living trees” are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order. (shrink)

In recent decades, neo-republican philosophers have developed a theory of freedom as non-domination, which, they claim, is conceptually and analytically distinct from the “liberal” concept of freedom as non-interference. However, neo-republicans have intervened in constitutional debate almost exclusively in relation to structural issues of institutional competence, and have made little impact on the analytical jurisprudence of constitutional rights. While judicial review seems ill equipped to respond to the distributive dimensions of republican freedom, republicans like Richard Bellamy have argued that the (...) whole edifice of countermajoritarian, strong-form judicial review is itself an affront to freedom as non-domination properly understood. Republican freedom, in this lens, is defined structurally, procedurally and politically rather than in relation to a definite set, concept or theory of rights that is put outside and beyond politics. And partly for this reason, there has been little commentary concerning how the theory of freedom as non-domination might inform constitutional-rights doctrine. This article will argue, first, that the neo-republican view can usefully inform constitutional-rights doctrine notwithstanding republican reservations concerning judicial power. Second, it will propose a number of specific ways in which the jurisprudence of constitutional rights might account for the central concerns of the republican idea. (shrink)

Jürgen Habermas takes the realization of rights through the democratic self-organization of legal communities to be the normative core of emancipatory politics. In this article I explore the implications of this claim in relation to the requirements of justice. I argue that Habermas's discourse theory of democratic legitimacy resupposes a substantive principle of justice that demands the equalization of effective communicative freedom for all structurally constituted social groups in any constitutional state. This involves the elimination of a range of structural (...) injustices rooted in the complex interrelationships between political, economic and cultural orders. In the final section I sketch briefly the implications of this analysis in the context of ongoing globalization processes. It is suggested that the most effective way to establish a just system of global governance is to equalize effective communicative freedom among nation-states. (shrink)

This paper explores how law might conceive of the injury or harm of endocrine disruption as it applies to an aboriginal community experiencing chronic chemical pollution. The effect of the pollution in this case is not only gendered, but gendering: it seems to be causing the ‘production’ of two girl babies for every boy born on the reserve. This presents an opening to interrogate how law is implicated in the constitution of not just gender but sex. The analysis takes (...) an embodied turn, attempting to validate the real and material consequences of synthetic chemicals acting on bodies—but uncovers that finding a harm in a declining sex ratio depends on a static conception of the human form, based on unfounded assumptions of ‘naturalness’ and ‘normalcy’. Elizabeth Grosz’s theory of ‘becoming’ offers a compelling challenge, essentially pointing to the conclusion that we should find harm where we find illness and suffering and not simply where we find difference. At the same time, we cannot discount the political economy of the pollution: the paper concludes by returning the focus to the role of power, colonialism and the state in the perpetuation of the pollution on the landscape. (shrink)

Legal scholars have been inspired by the dialogic approach and rallied around it as the solution to constitutional conflict in domestic constitutional orders and the transnational legal landscape. This paper aims to show that the gravitation towards judicial dialogue in contemporary constitutional theory misses the point, given the ambiguities surrounding it. My investigation reveals that the dialogic approach does not succeed in guiding the inter-departmental or inter-regime interactions in a way that no single power would exert unilateral domination. The emergence (...) of judicial supremacy in both national and transnational constitutional orders further suggests that underlying those ostensible examples of judicial dialogue is a transfigured conception of sovereignty. As it is the rise of judicial sovereignty that drives the move towards judicial dialogue in contemporary constitutional developments, I suggest that legal scholars shift focus of attention from the idea of dialogue to the enhanced judicial role in the new constitutional era. (shrink)