Droit et analyse de politiques

D14(a) - Legal Matters

Date: May 31 | Heure: 03:45pm to 05:15pm | Location: Classroom - CL 345 Room ID:15720

Chair/Président/Présidente : Amy Zarzeczny (University of Regina)

Discussant/Commentateur/Commentatrice : Ubaka Ogbogu (University of Alberta)

Contrasting Legal Reforms Relating to Sex Work and Medical Aid in Dying Post Bedford and Carter Cases: Alex Wellington (Ryerson University)
Abstract: This paper undertakes a critical normative analysis, contrasting two of the most anticipated and hotly debated Supreme Court decisions in the last few years. The focus is on the cases of: Bedford v Canada in December 2013, finding unconstitutional sections of the Criminal Code concerning activities relating to prostitution, or sex work and (ii) Carter v Canada in February 2015, finding unconstitutional provisions of the Criminal Code prohibiting assisted suicide. There are prominent similarities in the trajectories of the cases: (1) innovative interpretations of Section 7 of the Charter spearheaded by and named in honour of female litigants: Terri-Jean Bedford, and Lee Carter; (2) female trial court judges (Justices Susan Himel and Lynn Smith respectively) who issued radically transformative decisions that went against Supreme Court precedents (Prostitution Reference and Rodriguez cases); and (3) rulings that incorporated substantial testimony from experts across multiple jurisdictions, and most significantly, lived experiences of predominantly female participants in sex work, and a diversity of persons seeking medical aid in dying. Both cases highlight the impoverishment of criminal prohibitions at achieving harm reduction, but the situation post Bedford remained confined under the criminal law umbrella, while that post Carter migrated to intersect with a health law framework. The litigants in Carter could feel reassured at ushering in crucial legal reforms that motivated their litigation; the same could not be said of those in Bedford. The complexities become especially evident when the two cases are contrasted and critiqued through the lens of liberal feminist legal theory.

Dialogue Theory: Descriptive, Normative or Causal?: Jean-Christophe Bédard-Rubin (University of Toronto)
Abstract: The theory of the dialogue between courts and legislatures has been very successful since its first formulation in the Canadian context by Hogg & Bushell in 1997. Picked up both by judges and academics in Canada and elsewhere, it has become one of the main defining features of the Canadian model of judicial review. The literature is sometimes unclear, however, as to what kind of theory dialogue theory actually is. Is it a causal theory and, if so, is dialogue a cause or a consequence? And what is it a cause (or consequence) of? Is it a normative theory and, if so, what kinds of empirical claims does it take for granted? Is it simply a descriptive theory? All of these questions are often entangled with one another. This paper (I) reviews the Canadian literature on constitutional dialogue and critically assesses its success from a normative, descriptive and causal perspective. The paper then (II) goes on to discuss the specific problems associated with the causal version of the dialogue theory. Then, (III) the paper tries to formulate a causal theory of constitutional dialogue that is both empirically testable and meaningful from a comparative perspective and brings to bear on this issue the experience of other jurisdictions. Finally, (IV) the paper provides potential alternative explanations for the relative success and stability of the Canadian model of judicial review that could be used as rival hypotheses to the causal theory of constitutional dialogue.